Imposing Restrictions on the First Step Act’s Retroactive Application to Vacated Sentences

The First Step Act has been called “the most significant criminal justice reform bill in a generation.” Until recently, the Eleventh Circuit had not weighed in on whether Section 403 of the First Step Act’s sentencing reforms applies to defendants whose initial sentences were vacated and who face resentencing after the Act’s enactment. On July 2, 2024, the Supreme Court agreed to squarely consider this issue, despite the Department of Justice siding with defendants yet calling the issue “shallow.” On July 8, 2024, the Eleventh Circuit held these defendants are not entitled to the benefits of the First Step Act despite four of its sister circuits holding the opposite. Ultimately, the resolution of the circuit split explored by this Article reconsiders issues of statutory interpretation, lenity, vacatur, and clear congressional intent to benefit offenders serving long mandatory minimums. Accordingly, this Article examines the Eleventh Circuit’s decision in United States v. Hernandez and, following Justice Gorsuch’s lead, advocates that district and appellate courts should look more closely at ambiguity. Under the current regime, courts are swift to state that the statutory analysis should end with the text, even where reasonable minds differ about the meaning behind it. With Justice Gorsuch’s originalist understanding of the rule of lenity, this Article argues that the First Step Act provides an opportunity to reexamine the assumption of unambiguity and the function of the rule of lenity in the face of clear congressional intent. This Article concludes that, should the Supreme Court follow Justice Gorsuch’s reasoning, the Eleventh Circuit’s decision in Hernandez may be abrogated.