Today, the Supreme Court by a 5 to 4 vote held that District Courts may apply more lenient law at First Step Act resentencings. Hewitt v. United States, No. 23-1002 (June 26, 2025) (opinion here). Former Assistant Federal Defender Justice Jackson delivered the opinion of the Court with respect to parts I, II, and III, in which Chief Justice Roberts, and Justices Sotomayor, Kagan, and Gorsuch joined, and an opinion with respect to Parts IV and V, in which Sotomayor and Kagan joined. Justice Alito filed a dissenting opinion, joined by Justices Thomas, Kavanaugh, and Barrett.
Justice Jackson’s majority opinion concisely frames the legal issue and starts like this:
Before the First Step Act was enacted in 2018, federal judges were required to sentence certain first-time offenders convicted of violating 18 U. S. C. §924(c)—a law that criminalizes the possession of a firearm while committing other crimes—to “stacked” 25-year periods of incarceration. The First Step Act, 132 Stat. 5194, eliminated this harsh mandatory minimum penalty. Congress also made the Act’s more lenient penalties partially retroactive. Section 403(b) specifies that the Act applies if a sentence “has not been imposed” upon an eligible §924(c) offender as of the date of the First Step Act’s enactment. Id., at 5222.
The question presented here concerns an edge case: What penalties apply when a §924(c) offender had been sentenced as of the Act’s enactment, but that sentence was subsequently vacated, such that the offender must face a post- Act resentencing? We hold that, under that circumstance, a sentence “has not been imposed” for purposes of §403(b). Thus, the First Step Act’s more lenient penalties apply.
This decision is good news for Petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross, who were convicted in 2009 of multiple counts of bank robbery and conspiracy to commit bank robbery, along with corresponding § 924(c) offenses for use of a firearm during a crime of violence. Each received a mandatory 5-year sentence as to their first § 924(c) count of conviction. And despite being first-time offenders, each received 25-year mandatory sentences on every § 924(c) count beyond their first. In total, each were sentenced to more than 325 years—roughly 25 years for the robbery offenses, with the remainder attributable to stacked § 924(c) convictions. Following some successful challenges on direct appeal, they were resentenced to between 285 – 305 years, which were affirmed on subsequent direct appeal. Their initial 2255 motions were denied.
After Congress passed the First Step Act in 2018, the Supreme Court held that the “crime of violence” definition used to support some § 924(c) convictions was unconstitutionally vague. See United States v. Deal, 588 U.S. 445, 470 (2019). Because that potentially impacted petitioners, the Fifth Circuit granted Petitioners authorization to file second or successive 2255 motions. The District Court then vacated the impacted § 924(c) convictions and their sentences. Petitioners argued they should be entitled to the First Step Act’s more lenient treatment of § 924(c) convictions at the resentencing. But the District Court disagreed and resentenced them under the pre-Act sentencing scheme, giving them stacked § 924(c) mandatory minimum for each § 924(c) count beyond their first. Petitioners each received sentences of 130 years or more—105 of which were attributable to stacked § 924(c) penalties. On remand, Petitioner’s will get the benefit of the First Step Act and not face § 924(c) stacking!
The merits briefing is available on the Supreme Court’s docket here.