USA V. VERNE MERRELL, No. 20-30183 (9th Cir. 2022)
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In three defendants’ consolidated appeals, the Ninth Circuit (1) vacated the sentences imposed at resentencing on two 18 U.S.C. Section 924(c) counts that remained after the district court—in light of United States v. Davis, 139 S. Ct. 2319 (2019)—had granted 28 U.S.C. Section 2255 relief and vacated the defendants’ convictions on two other Section 924(c) counts; and (2) remanded for resentencing.
The court held that the version of 18 U.S.C. Section 924(c)(1) that was amended by the First Step Act of 2018, and not the original version of Section 924(c)(1), applies at post-Act resentencing of Defendants whose sentences were imposed before the Act’s passage and vacated. In so holding, the court interpreted Section 403(b) of the Act, which provides that the 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.” The court held that because vacatur of the prior sentences here wiped the slate clean, a sentence had not been imposed for purposes of Section 403(b) at the time of resentencing. The court wrote that the most reasonable reading of Section 403(b) is that “a sentence” means an existing valid sentence, not a prior valid one; and that the vacated sentence—a legal nullity—cannot form the legal predicate for the exclusion from the application of the First Step Act, which Congress expressly made retroactive under Section 403(b).
Court Description: Criminal Law. In three defendants’ consolidated appeals, the panel (1) vacated the sentences imposed at resentencing on two 18 U.S.C. § 924(c) counts that remained after the district court—in light of United States v. Davis, 139 S. Ct. 2319 (2019)—had granted 28 U.S.C. § 2255 relief and vacated the defendants’ convictions on two other § 924(c) counts; and (2) remanded for resentencing. * The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. UNITED STATES V. MERRELL 3 The panel held that the version of 18 U.S.C. § 924(c)(1) that was amended by the First Step Act of 2018, and not the original version of § 924(c)(1), applies at post-Act resentencing of defendants whose sentences were imposed before the Act’s passage and vacated. In so holding, the panel interpreted § 403(b) of the Act, which provides that the 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.” The panel held that because vacatur of the prior sentences here wiped the slate clean, a sentence had not been imposed for purposes of § 403(b) at the time of resentencing. The panel wrote that the most reasonable reading of § 403(b) is that “a sentence” means an existing valid sentence, not a prior valid one; and that the vacated sentence—a legal nullity—cannot form the legal predicate for the exclusion from the application of the First Step Act, which Congress expressly made retroactive under § 403(b). The panel rejected the defendants’ other arguments in a concurrently filed memorandum disposition. Dissenting, Sixth Circuit Judge Boggs would hold that § 403(b) does not apply retroactively to defendants who were sentenced prior to December 21, 2018, even if such a sentence was subsequently vacated. He wrote that instead of applying the words of the statute to these appellants, the majority substitutes its theory of what Congress might have meant. 4 UNITED STATES V. MERRELL
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