Stacked Against Defendants: Retroactivity, Vacatur, and the First Step Act in Hewitt v. United States

In 2018, Congress passed the First Step Act with overwhelming bipartisan support. One of its provisions, § 403, clarifies 18 U.S.C. § 924(c) by eliminating the "stacking" of mandatory minimum sentences for certain firearm offenses for first-time offenders. Section 403(b) makes the provision retroactive so long as "a sentence for the offense has not been imposed" as of the Act's date of enactment. In 2009, bank robbers Corey Duffey, Tony Hewitt, and Jarvis Ross were convicted of several federal crimes, including stacked § 924(c) offenses. After their sentences were vacated in 2020, they argued that they should be resentenced under the First Step Act because a vacated sentence is not one that has been imposed. The district court, and subsequently the Fifth Circuit, disagreed, holding that a sentence had been imposed, thus precluding retroactive application of § 403. The Supreme Court should reverse the Fifth Circuit's decision given § 403(b)'s plain text, that a vacated sentence has not been imposed, and that the broader purpose of the First Step Act as reflected in Congress's intent supports Petitioners.