Hewitt v. United States

Issues

Do the First Step Act’s sentencing reduction provisions apply to a defendant whose original sentence was judicially vacated before the Act’s enactment?

Oral argument:
January 13, 2025
Court below:
United States Court of Appeals for the Fifth Circuit

This case concerns the scope of the First Step Act’s sentencing reforms regarding defendants who were sentenced before the Act’s passage but have been re-sentenced since. The Hewitt defendants and the United States argue that the First Step Act’s inclusion of sentences “not imposed” before the statute’s enactment should apply to the defendants’ sentences, since the re-evaluation of the defendants’ sentences means that the original judgements were not “imposed sentences.” However, the Hewitt defendants and the United States differ in their reasonings. The Hewitt defendants contend their re-sentencing is covered by the Act because of the general principles that courts must interpret ambiguous criminal laws in favor of defendants and that vacated sentences should be treated as not having occurred. The United States contends that the Hewitt defendants are covered by the Act because of the specific language of the Act referencing currently valid sentences, the larger statutory context, and the larger legislative goals motivating the Act. This case has implications for the application of criminal justice sentencing reforms, as well as for how the Court evaluates Congressional intent.

Questions as Framed for the Court by the Parties

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the act’s enactment, when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the act’s enactment.

Facts

18 USC § 924(c) requires that a person convicted of a crime of violence or a drug trafficking crime must receive an additional sentence of at least five years if the person possessed a firearm during the commission of that crime. Prior to the First Step Act, each time a person was convicted of a “second or subsequent offense” under § 924(c), that person could receive an additional sentence of at least twenty-five years for each offense. Sentences under § 924(c) could be “stacked,” meaning that second or subsequent offenses could arise out of the same conduct as the first offense, and sentences were to be served consecutively. In 2018, Congress passed the First Step Act (“the FSA”), which reduced many mandatory minimum prison sentences, including those of § 924(c). The FSA contains a provision aimed at preventing sentence stacking by prohibiting offenses from being considered “second or subsequent offenses” if the person did not already have a final conviction for an offense under § 924(c). The FSA retroactively applies “to any offense that was committed before the date of enactment of [the FSA], if a sentence for the offense has not been imposed as of such date of enactment,” and individuals who meet the requirements of the FSA’s retroactivity provision are eligible for a reduction of the potential time they must serve.

In 2009, Tony R. Hewitt, Corey Deyon Duffey, and Jarvis Dupree Ross (collectively “the Hewitt defendants”) were convicted of multiple counts of conspiracy to commit bank robbery, attempted armed robbery, and armed robbery. The Hewitt defendants were also convicted of using a firearm in connection with each of the other charges Under 18 USC § 924(c), the Hewitt defendants each received sentences of at least five years for possessing a firearm in connection with conspiracy to commit bank robbery, plus multiple sentences each of at least twenty-five years for possessing a firearm in connection with the other charges. The Hewitt defendants appealed, and in 2012 the Fifth Circuit reversed and remanded the attempted robbery and associated firearms charges. However, the Fifth Circuit affirmed the convictions for conspiracy and armed robbery. In 2017, the Hewitt defendants unsuccessfully filed motions under 28 USC § 2255 to vacate , set aside, or correct their sentences.

In 2020, the Hewitt defendants filed a motion for authorization to file successive 28 USC § 2255 motions, arguing that the conspiracy-predicated firearms convictions under § 924(c) were unconstitutional because the Supreme Court had recently ruled that conspiracy was not a crime of violence. The Hewitt defendants filed successive habeas applications in district court. The district court vacated the Hewitt defendants’ conspiracy-predicated convictions and accompanying sentences, then ordered resentencing for all remaining convictions. On resentencing, the district court did not apply the FSA, reasoning that the Hewitt defendants could not benefit from the FSA’s retroactive application because the Hewitt defendants were serving a valid sentence when the FSA was enacted. The district court thus decided that the Hewitt defendants should be sentenced under § 924(c) without considering the FSA’s effects, and each defendant received a sentence of over 100 years. The Fifth Circuit affirmed the district court’s decision.

On March 8, 2024, the Hewitt defendants petitioned the Supreme Court of the United States for a writ of certiorari . The Supreme Court granted certiorari on July 2, 2024.

Analysis

METHODS OF STATUTORY INTERPRETATION

The Hewitt defendants argue that the FSA is ambiguous and that the rule of lenity obligates the Court to rule in their favor. First, the Hewitt defendants note that the rule of lenity obligates the Court to resolve ambiguities in interpreting criminal statutes in favor of the defendant. The Hewitt defendants argue that the rule of lenity prohibits courts from interpreting a statute contrary to the statute’s ordinary, everyday interpretation when that interpretation harms the defendant. Second, the Hewitt defendants assert that the rule of lenity is founded on the principle of warning potential criminals about the consequences of their actions in clear, everyday language. The Hewitt defendants contend that the Fifth Circuit violated the principles underpinning the rule of lenity when ruling in favor of the district court, which had employed the less ordinary interpretation of the FSA. The Hewitt defendants assert that even if the Court disagrees with their interpretation, the Court must rely on the rule of lenity to interpret the FSA because the Hewitt defendants’ interpretation of the FSA is at least plausible and would result in more lenient sentences for the Hewitt defendants.

The United States, arguing against the Fifth Circuit’s judgment, contends that the FSA’s grammar and context indicate that the FSA’s resentencing provisions cover the Hewitt defendants. The United States asserts that the word “ sentence ” in the FSA’s retroactivity provision refers to a final, still-valid judgement instead of a past, now-invalid judgement, since the provision uses the present perfect tense with “has not been imposed” instead of the past-perfect tense with “ had not been imposed.” The United States argues that the FSA only does not cover individuals whose sentences both were passed before the FSA’s enactment and remain valid into the present. Since a court cannot assign two sentences to a defendant for the same offense, the United States asserts that a defendant cannot have a sentence for an offense if the defendant is receiving a new sentence for that offense, and that therefore the Hewitt defendants did not have sentences when the FSA was enacted.

Michael H. McGinley, arguing in support of the Fifth Circuit’s judgement, counters that the rule of lenity does not apply when interpreting the FSA since the rule of lenity’s underlying principles are not at issue. First, McGinley asserts that the rule of lenity only applies when there is a grievous ambiguity regarding a statute’s meaning even after a court has exhausted all other methods of statutory interpretation in interpreting the statute. Second, McGinley contends that there is no concern about providing insufficiently clear warning to potential criminals about the consequences of their actions because the FSA’s sentencing reduction only concerns sentencing after a crime has already been committed. McGinley adds that the Hewitt defendants would have already known and been “warned about” the punishment they ultimately received when they were committing their crimes. Third, McGinley contends that applying the rule of lenity will infringe upon Congress’s legislative domain and override Congress’ directive that courts not retroactively modify criminal statutes.

McGinley argues that the Fifth Circuit correctly applied the plain meaning of the FSA when determining that the FSA did not cover the Hewitt defendants’ sentences. McGinley contends that the Fifth Circuit’s reading of the FSA correctly used the commonly accepted, everyday definitions of words such as “sentence.” McGinley asserts that the FSA’s plain meaning does not require an individual to currently have a sentence because the FSA does not contain explicit requirements for an individual to have a “final” or “valid” sentence, but rather only requires that an individual have “a” sentence. McGinley argues that the use of the present-perfect tense with “has imposed” in the FSA’s retroactivity provision supports interpreting the FSA as not covering the Hewitt defendants since the act of imposing a sentence is a one-time historical event, especially in the context of the requirement that the sentence be imposed by the date of the FSA’s enactment. McGinley contends that the existence of any sentence, even a sentence that is later vacated, will exclude an individual from being covered by the FSA. McGinley contends that when the Hewitt defendants and the United States require that a “sentence” be a “valid sentence,” they unjustifiably add new words into the law to make it conform with their arguments.

GENERAL PRINCIPLES VERSUS PARTICULAR LEGISLATIVE INTENT

The Hewitt defendants argue that the Court can assume Congress intended for the FSA only not to cover final sentences because of the general principle that invalid sentences are presumed never to have occurred. The Hewitt defendants argue that history and tradition indicate a general principle that vacated sentences are considered never to have been imposed. The Hewitt defendants argue that the generally accepted, common meaning of “sentence” includes the legal principle of vacatur and means “any non-vacated sentence,” and that Congress considers the commonly accepted meanings of the terms that appear in Congressional statutes. The Hewitt defendants assert that Congress is aware of the history and tradition behind the general principle that invalid sentences are treated as never having occurred and would have intended for the FSA to only consider non-vacated sentences in its use of the word “sentence.”

The United States argues that interpreting the FSA to cover the Hewitt defendants would further the Congressional intent behind the FSA. The United States contends that Congress did not intend to enshrine in the FSA the principle that invalid sentences are presumed never to have occurred. The United States argues that there are situations in which the historic imposition of a sentence would be significant regardless of the sentence’s validity, and that treating invalid sentences as having never occurred in all situations would be overbroad. The United States argues that Congress’s intent to protect defendants from excessive sentencing will be met by overturning the judgment below and allowing the FSA sentencing guidelines to apply to the Hewitt defendants. The United States asserts that Congress explicitly broke with the default rule that new sentencing guidelines do not apply to completed offenses, providing supporting that Congress intended for the FSA to cover the Hewitt defendants.

McGinley counters that general principles should not override the plain reading of a statute when deciphering legislative intent. McGinley asserts that even if the Court were to consider general principles to determine legislative intent, there exists no general principle stating that vacated sentences were never imposed. McGinley contends that applying general principles would ignore the text of scrutinized and legally passed legislation in favor of court-created general principles which Congress has never voted on. McGinley argues that there is no reason to believe that Congress had the principle of vacated sentences never being imposed in mind when passing the FSA, and highlights that Congress has assigned weight to previously vacated sentences in statutes such as in the Sentencing Reform Act of 2015 , where Congress explicitly mentioned using “previous sentencing” as a guideline.

McGinley argues that the FSA’s context does not indicate legislative intent to distinguish between vacated and unvacated sentences. First, McGinley contends that Congress would have referenced finality or validity in the FSA’s retroactivity provision if Congress had intended to specifically exclude vacated sentences, as Congress has done in other related statutes and in other sections of the FSA. Secondly, McGinley argues that Congress has explicitly excluded vacated sentences from a statute’s reach in other statutes, and that Congress’s choice to not do so in the FSA proves that Congress never intended to follow a general principle of ignoring vacated sentences. Additionally, McGinley contends that if the Court uses general policy principles to override statutory text, it will be thwarting legislative will rather than enacting it. McGinley asserts that the FSA was not intended to provide relief to all defendants, and that Congress is responsible for deciding which individuals the FSA will cover.

Discussion

CONGRESSIONAL INTENT IN SENTENCING REFORM

The District of Columbia, joined by eleven states (“DC”), argues that the FSA enacted vital sentencing reform because stacking under § 924(c) was unreasonably harsh, particularly for first-time offenders. Under the FSA, the Hewitt defendants would each receive a total sentence of twenty-five years, which DC finds more reasonable than their original sentences of 105 years. The Fifth Circuit’s interpretation, DC states, promotes injustice by prescribing significantly different sentences to individuals being sentenced for the same crime on the same day, merely on the basis of when individuals received their initial sentences. Senators Durbin, Grassley, Booker, and Lee (“Senators”), who supported the First Step Act, claim that Congress’s purpose in passing the FSA and the President’s purpose in supporting the FSA was to prevent sentences from being unjustly harsh or “draconian,” reduce the racial disparities in the justice system, and ensure that the justice system is fair. DC argues that interpreting the FSA to cover the Hewitt defendants would reflect the intent for sweeping reform held by the bipartisan Congressional supermajority that passed the FSA.

McGinley counters that applying the FSA would unfairly reward defendants whose appeals had taken longer because the defendants had requested continuances or delayed proceedings with complicated non-meritorious appeals. McGinley also asserts that overturning the Fifth Circuit’s ruling would be unfair because Hewitt’s resentencing only occurred because he was sentenced for conspiracy, and that an individual convicted of armed robbery at the same time as the Hewitt defendants who committed his robbery alone would not benefit from the FSA. McGinley states that the Hewitt defendants’ interpretation of the FSA rewards those who commit more dangerous crimes by acting in conspiracy with others.

DRUG OFFENDERS

DC highlights that the FSA also prohibited sentence stacking for drug offenses by requiring that a defendant have served at least twelve months in prison before being eligible for sentence enhancements that could include a minimum mandatory sentence of life in prison. The National Association of Criminal Defense Lawyers (NACD) points out that drug offenders represent 44% of the prison population, and that a third of those drug offenders would qualify for sentence enhancements that would increase their overall time to be served. The NACD asserts that sentencing enhancements have also been unjustly applied to defendants based on the district in which the defendant was sentenced and the race of the defendant, with some districts never applying sentence enhancements and other districts applying sentence enhancements in more than three-quarters of cases.

McGinley counters that the FSA does not have any effect on the resentencing of individuals who were incarcerated at the time of the FSA’s enactment. McGinley asserts that the FSA was not enacted to benefit all defendants in their sentencings, but only those who Congress intended to benefit. McGinley further argues that interpreting the FSA as covering defendants with vacated sentences would be more unfair by arbitrarily benefiting defendants based on factors outside of their control such as the timing of their appellate and habeas proceedings, or even benefitting certain defendants who committed more dangerous crimes over defendants who committed less dangerous crimes.

Conclusion

Authors


Written by: Sasha Prakir and Samantha Wood

Edited by: Nicholas Sola

Additional Resources