United States v. Orestes Hernandez

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13311

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ORESTES HERNANDEZ,

a.k.a. John Doe 2,

a.k.a. Cuco,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:96-cr-00443-JEM-4

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2 Opinion of the Court 22-13311

____________________

Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.

NEWSOM, Circuit Judge:

This case presents an interesting question of statutory inter-

pretation that has divided our sister circuits. Section 403(a) of the

First Step Act of 2018 prohibits district courts from engaging in one

particular form of (what some have called) sentence “stacking.”

Specifically, and as relevant here, under § 403(a), if a defendant is

charged in the same indictment with multiple counts of possessing

a firearm in furtherance of a crime of violence in violation of 18

U.S.C. § 924(c), and he doesn’t have a previous § 924(c) conviction

that has become final, the second and ensuing counts will carry

only 5-year consecutive mandatory sentences, rather than the

much higher consecutive mandatories that would have attached

under preexisting law. See First Step Act of 2018, Pub. L. No. 115-

391, § 403(a), 132 Stat. 5194, 5221–22. Significantly for our pur-

poses, § 403(b) then provides that § 403(a)’s modified stacking rule

applies to pre-Act convictions—but only “if a sentence for the of-

fense has not been imposed as of [the] date of enactment.” Id.

§ 403(b). We must decide whether a criminal sentence that was

pronounced before the First Step Act’s effective date but thereafter

vacated counts as “a sentence” that “has … been imposed” within

the meaning of § 403(b)—in essence, whether § 403(b) refers to the

historical fact of a sentence’s imposition, in which case the answer

to the question as we’ve framed it is yes, or to the legal effect of

that sentence, in which case the answer is no. Compare, e.g., United

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22-13311 Opinion of the Court 3

States v. Duffey, 92 F.4th 304, 309 (5th Cir. 2024) (yes), cert. granted,

___ U.S. ___, ___ S. Ct. ___, 2024 WL 3259688 (U.S. July 2, 2024),

and United States v. Jackson, 995 F.3d 522, 525–26 (6th Cir. 2021)

(yes), with, e.g., United States v. Mitchell, 38 F.4th 382, 389 (3d Cir.

2022) (no), and United States v. Merrell, 37 F.4th 571, 577 (9th Cir.

2022) (no).

We hold that § 403(b)’s text and context make clear that a

sentence that was pronounced pre-Act but thereafter vacated does

qualify as “a sentence” that “has … been imposed” for § 403(b) pur-

poses. If that’s not the result that Congress intended, it is of course

free to amend the statute. We are not.

I

Way back in 1998, Orestes Hernandez was convicted of par-

ticipating in a series of violent crimes—in particular, (1) several rob-

bery- and extortion-related Hobbs Act offenses, (2) multiple car-

jacking offenses, and, as relevant here, (3) three violations of 18

U.S.C. § 924(c), which prohibits using or carrying a firearm “during

and in relation to any crime of violence.” Hernandez was origi-

nally sentenced for his crimes in 1999, and then, following an ap-

peal, was resentenced in 2002.

Nearly two decades later, Hernandez filed a motion under

28 U.S.C. § 2255 challenging his § 924(c) convictions on the ground

that under the Supreme Court’s intervening decisions in Johnson v.

United States, 576 U.S. 591 (2015), and United States v. Davis, 588 U.S.

445 (2019), his attempted-robbery charge no longer qualified as a

predicate “crime of violence” for § 924(c) purposes. In an order

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4 Opinion of the Court 22-13311

entered in 2021, the district court vacated one of Hernandez’s

§ 924(c) convictions and ordered him resentenced. That resentenc-

ing occurred in 2022.

At resentencing, the court had to grapple with whether the

First Step Act, which Congress had passed in 2018, affected Her-

nandez’s sentencing calculus. At the time that Hernandez commit-

ted his crimes in 1995 and 1996, at the time he was convicted of

those offenses in 1998, at the time he was originally sentenced for

them in 1999, and at the time of his initial resentencing in 2002,

separate § 924(c) counts charged in the same indictment could be

“stacked” in a particular way, leading to dramatically increased pen-

alties for any “second or subsequent conviction.” See 18 U.S.C.

§ 924(c)(1) (1996). Under that regime, Hernandez would face a 5-

year sentence for his first § 924(c) violation and a consecutive 20-

year sentence for the second. See id. Hernandez argued, however,

that § 403(b) of the newly passed First Step Act prohibited that sort

of stacking of § 924(c) violations arising out of a single indictment

and, accordingly, that he was subject only to much lower 5-year

terms on each § 924(c) count. The district court rejected Hernan-

dez’s contention that he was entitled to the benefit of the First Step

Act’s modified stacking rule.

This is Hernandez’s appeal. The question before us is

whether § 403(a) applies to Hernandez’s case. And the answer to

that question, in turn, depends on the meaning of § 403(b), which,

again, makes § 403(a) applicable to pre-Act convictions provided

that “a sentence for the offense has not been imposed as of such

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22-13311 Opinion of the Court 5

date of enactment.” First Step Act of 2018, Pub. L. No. 115-391,

§ 403(b). We must decide whether a sentence that was pronounced

before the First Step Act’s passage—as Hernandez’s was, whether

we consider 1999 or 2002 as the operative date—but was thereafter

vacated—as Hernandez’s was in 2021—constitutes “a sentence”

that “has … been imposed” within the meaning of § 403(b). Her-

nandez insists that it doesn’t and, therefore, that § 403(a)’s modified

stacking rule applies to his case.

Following the First-Step Act’s adoption, the government in-

itially disagreed with other petitioners advancing Hernandez’s po-

sition. It contended, to the contrary, that a sentence that was ini-

tially pronounced before the Act’s passage, even if later vacated,

counts as “a sentence” that “has … been imposed” for § 403(b) pur-

poses. But the government later reversed course, filed a confession

of error in Hernandez’s case, and adopted his interpretation. Her-

nandez and the government now jointly ask us to remand to the

district court for application of § 403(a) to Hernandez’s second

§ 924(c) count. We appointed Paul M. Cozzi as amicus curiae to

defend the district court’s judgment. He has ably discharged his

responsibilities.

II

We start with the relevant statutory provisions. First,

§ 403(a)’s modified stacking rule:

Section 924(c)(1)(C) of title 18, United States Code, is

amended, in the matter preceding clause (i), by strik-

ing ‘‘second or subsequent conviction under this

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6 Opinion of the Court 22-13311

subsection’’ and inserting “violation of this subsec-

tion that occurs after a prior conviction under this

subsection has become final”.

Pub. L. No. 115-391, § 403(a). In plain English—and no one dis-

putes this—§ 403(a) changes the rules to (in many cases) ameliorate

the effects of stacking multiple § 924(c) sentences arising out of the

same indictment. Here, all agree that Hernandez’s two remaining

§ 924(c) offenses were in fact charged in the same indictment. Ac-

cordingly, if § 403(a) applies to his case, then Hernandez is entitled

to a resentencing. If it doesn’t, then he’s not. The real question,

therefore, is whether § 403(a) applies. And the answer to that ques-

tion depends on the proper interpretation of § 403(b).

In § 403(b), Congress specified § 403(a)’s “APPLICABILITY TO

PENDING CASES” as follows:

This section, and the amendments made by this sec-

tion, shall apply 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.

Id. § 403(b). So again, in plain English, § 403(a)’s modified stacking

rule applies to pre-Act convictions like Hernandez’s—but only, the

statute says, “if a sentence for the offense has not been imposed as

of [the] date of enactment.” Given § 403(b)’s language, the dispos-

itive question is this: Does Hernandez’s initial sentence, which a

district court pronounced before the First Step Act’s passage in

2018 but thereafter vacated in 2021, qualify as “a sentence” that

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22-13311 Opinion of the Court 7

“has … been imposed” within the meaning of § 403(b)? For reasons

we will explain, we hold that it does—and, therefore, that Hernan-

dez is not entitled to the benefit of § 403(a)’s new stacking rule.

A

As in all statutory-interpretation cases, our duty is to discern

§ 403(b)’s ordinary meaning. See United States v. Pate, 84 F.4th 1196,

1201 (11th Cir. 2023) (en banc) (citing Niz-Chavez v. Garland, 593 U.S.

155, 160 (2021)). Our job, therefore, is to inquire “how a reasonable

person, conversant with the relevant social and linguistic conven-

tions, would read the text in context.” Id. (quoting John F. Man-

ning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93

(2003)). Here, we must determine whether a sentence that was

pronounced before the First Step Act’s passage but was thereafter

vacated qualifies as “a sentence” that “has … been imposed” for

§ 403(b) purposes. Three textual clues lead us to conclude that it

does.

1

We begin with the word “sentence.” In its reply brief, the

government cites Black’s Law Dictionary: A “sentence” is “[t]he

judgment that a court formally pronounces after finding a criminal

defendant guilty.” Black’s Law Dictionary 1636 (11th ed. 2019). That

explanation, we agree, accurately captures the ordinary meaning,

but in our view it tends to undermine Hernandez and the govern-

ment’s interpretation and to confirm the amicus’s. The Black’s def-

inition fits Hernandez’s original sentence to a T: That was the

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8 Opinion of the Court 22-13311

“judgment” that the district court “pronounc[ed]” upon “finding

[Hernandez] guilty.”

Had Congress wanted to specify the sorts of “sentence[s]”

to which § 403(b) applies or otherwise limit that term’s reach, it

could have done so in any number of ways—for instance, by refer-

ring to “a final sentence” or “a valid sentence,” or perhaps even to

“the sentence.” Conspicuously, it did none of those things. To the

contrary, Congress did just the opposite, introducing the term “sen-

tence” with the indefinite article “a.” Usage guides confirm what

we all know—that the indefinite “a” points “to a nonspecific object,

thing, or person that is not distinguished from the other members

of a class.” Bryan A. Garner, Garner’s Modern English Usage 991 (4th

ed. 2016). Indeed, we’ve gone so far as to say that the term “a”

denotes “any.” United States v. Alabama, 778 F.3d 926, 933 (11th Cir.

2015). At the very least, we think, Congress’s use of the indefinite

“a” indicates that § 403(b) covers any type of “sentence” that “has

… been imposed” for an offense—even one, we agree with then-

Judge Barrett, “that was subsequently vacated.” United States v. Uri-

arte, 975 F.3d 596, 608 (7th Cir. 2020) (Barrett, J., dissenting). 1

1 To be clear, United States v. Burke, 863 F.3d 1355 (11th Cir. 2017), on which

our dissenting colleague relies so heavily, is not to the contrary. See Dissenting

Op. at 1, 7–8. The panel there didn’t purport to define the term “sentence” for

all times and all purposes. Rather, and more subtly, it pointed to the relevant

text, guidelines commentary, and precedent to hold that as used in U.S.S.G. §

4A1.2(a), a “sentence” is a judgment that retains continuing validity. See id. at

1359. But, of course, the whole point of today’s decision is that § 403(b)’s own

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22-13311 Opinion of the Court 9

2

Next up, “has not been.” For reasons we’ll explain, in the

context of § 403(b), that phrase is best read to refer to a completed

act. All agree that the phrase “has not been” is framed in the pre-

sent-perfect tense, meaning that, as a general matter, it could “de-

note[] an act, state, or condition” that either “is now completed or

continues up to the present.” The Chicago Manual of Style § 5.132

(17th ed. 2017) (emphasis added). Here, though, Hernandez and

the government resist the usual rule that the present-perfect tense

can convey either meaning. They instead insist that Congress’s use

of the phrase “has not been” rather than “had not been” in § 403(b)

indicates that it meant to refer to a sentence that “continues up to

the present”—i.e., one that has continuing validity. See, e.g., Reply

Br. of the United States at 6.

We disagree. As in all interpretive enterprises, “context is

king.” Wachovia Bank, N.A. v. United States, 455 F.3d 1261, 1267 (11th

Cir. 2006). And here, the remainder of the relevant sentence sheds

light on the present-perfect use of “has not been” and indicates

that, in § 403(b), that phrase is better understood to point to a com-

pleted act than to a continuing one. Recall that § 403(b) refers to

“a sentence” that “has not been imposed as of [the First Step Act’s]

unique text and context—in particular, the juxtaposition of the term “sen-

tence” alongside the phrase “has not been” and the term “imposed”—indicate

a different, historical-fact understanding. With respect, there is nothing “half-

hearted,” Dissenting Op. at 10, about our explanation of the distinctions be-

tween Burke and this case. That explanation comprises our entire opinion.

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10 Opinion of the Court 22-13311

date of enactment.” Pub. L. No. 115-391, § 403(b) (emphasis added).

Because Congress was creating law “in real-time,” so to speak,

§ 403(b)’s use of the phrase “as of [the] date of enactment” means,

in effect, “as of today.”

That understanding, we think, has two important implica-

tions. First, it undermines Hernandez and the government’s con-

tention that if Congress had meant to refer to a completed act it

would have used the word “had” rather than “has”—and hence the

phrase “had not been” rather than “has not been.” That substitu-

tion would have made a syntactical hash of § 403(b), which then

would have extended § 403(a)’s modified stacking rule to pre-Act

convictions provided (with our “as of today” paraphrase) that “a

sentence for the offense had not been imposed as of [today].” Put

simply, that makes no sense—no one talks that way. So, as an initial

matter, Congress’s choice of “has” over “had” doesn’t have the tal-

ismanic significance that Hernandez and the government seem to

assume.

Second, Congress’s decision to identify a sentence’s “im-

pos[ition]” by reference to a specific point in time—namely, to the

First Step Act’s “date of enactment”—indicates that the phrase

“has not been” is best understood to refer to a completed act, not

an ongoing one. The construction pressed by Hernandez and the

government envisions that a criminal sentence can pass into and

out of existence. On that view, the target is always moving—and

always capable of evanescing. But that’s tough to square with the

concrete, point-in-time benchmark denoted by § 403(b)’s “date of

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22-13311 Opinion of the Court 11

enactment” language, in that it provides no way of knowing in real

time, as of the “date of enactment,” whether or not “a sentence

has … been imposed.”

3

Finally, the operative verb: “imposed.” As this Court has al-

ready recognized, when used in reference to a criminal sentence,

the term “imposed” in § 403(b) refers to the historical fact of pro-

nouncement. In United States v. Smith, we reiterated that “[o]ur prec-

edent dictates that a sentence is ‘imposed,’ somewhat unsurpris-

ingly, when the district court imposes it.” 967 F.3d 1196, 1212 (11th

Cir. 2020). More specifically, and more helpfully, we went on to

explain that “a sentence is ‘imposed’ for the purposes of § 403(b)

when it is pronounced by the district court.” Id. at 1213; accord, e.g.,

Young v. United States, 943 F.3d 460, 463 (D.C. Cir. 2019) (“[I]n ordi-

nary usage a sentence is ‘imposed’ when a district court pro-

nounces it.”); cf. 18 U.S.C. § 3553 (titled “Imposition of a sentence”

and stating that “[t]he court, in determining the particular sentence

to be imposed, shall consider” specific factors).2 And as already

2 It’s true, as the government and our dissenting colleague both note, that

Smith’s procedural posture was a little different—there, the question was

whether a sentence that remained pending on appeal could be deemed to have

been “imposed.” Smith, 967 F.3d at 1210–11. But nothing about that differ-

ence alters or undermines the Smith court’s ordinary-meaning explanation

that a sentence is “imposed” when the district court “pronounces” it in open

court. See, e.g., Webster’s Third New International Dictionary 1136 (1961)

(defining “impose,” in relevant part, to mean “to inflict”); Oxford English Dic-

tionary (online ed.) (defining “impose” to mean “[t]o lay on, as something to

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12 Opinion of the Court 22-13311

explained, pegging a sentence’s “impos[ition]” to the act of pro-

nouncement comports with ordinary legal usage. See supra at 7.

Needless to say, the pronouncement of a sentence is some-

thing that occurs at a particular point in time and space: A district

judge enters a courtroom, faces the defendant and his lawyer, and

orally delivers remarks that constitute the criminal sentence.3 That

oral pronouncement—the “impos[ition]”—is a historical fact. For

better or worse, it happened, and nothing—not even the sentence’s

later vacatur—can erase the historical record. Cf. Uriarte, 975 F.3d

at 607 (Barrett, J., dissenting) (“[I]t is perfectly coherent to describe

the procedural posture of a case by saying, ‘a sentence was imposed

last year, but it has since been vacated on appeal.’”). 4

be borne, or submitted to; to inflict (something) on or upon; [and] to levy or

enforce authoritatively or arbitrarily”).

3 Tellingly, we think, our precedent privileges the oral pronouncement of a

sentence as the operative act. In the event of a discrepancy between the oral

pronouncement and the written judgment memorializing a sentence, the for-

mer controls. See, e.g., United States v. Khoury, 901 F.2d 975, 977 (11th Cir.

1990).

4 Disagreeing with Justice Barrett, our dissenting colleague asserts that one

wouldn’t refer to a sentence as having been “imposed” if it was later vacated

“any more than we would say a touchdown has been scored if the referee calls

it back because of a penalty.” Dissenting Op. at 2. In response, we offer the

following representative instances in which ordinary people say, well, exactly

that—both orally and in writing. See, e.g., Jack Baer, Bills Defeat Chiefs After

Penalty Negates Go-Ahead Chiefs Touchdown, Yahoo Sports (Dec. 11, 2023),

https://sports.yahoo.com/bills-defeat-chiefs-penalty-refs-go-ahead-touch-

down-010958995.html (“For a moment on Sunday, the Kansas City Chiefs had

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22-13311 Opinion of the Court 13

* * *

To sum up, several textual and contextual considerations

strongly indicate that when § 403(b) refers to “a sentence” that “has

… been imposed,” it means an actual, historical, in-time-and-space

sentence, not necessarily a sentence that retains continuing legal

validity. Those considerations include (1) the ordinary meaning of

the term “sentence,” particularly where, as here, it is introduced by

the indefinite article “a”; (2) the use of the present-perfect phrase

“has … been imposed” in conjunction with the phrase “as of [the]

date of enactment”; and (3) this Court’s previous explanation that

a sentence is “imposed” for § 403(b) purposes when it is pro-

nounced.

B

Before we conclude, we should address what we take to be

the strongest counterargument—one that neither Hernandez nor

the government has expressly pressed but that several of our sister

circuits have accepted and our dissenting colleague embraces. See

Dissenting Op. passim. Vacatur, the argument goes, “wipes the

slate clean” and, therefore, § 403(b) doesn’t consider a since-vacated

a go-ahead score for the ages in a critical AFC matchup against the Buffalo

Bills. But a critical penalty wiped it out ….”); Purdue Pick Six Gets Called Back

After Returner High Steps Into the Endzone, YouTube (Nov. 19, 2022),

https://www.youtube.com/watch?v=DTLUnlY1dAI (“Touchdown Purdue!

Interception for a touchdown . . . [but] they might call this back.”).

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14 Opinion of the Court 22-13311

pre-Act sentence as having been “imposed,” at least in any way that

the law should respect.

The strongest articulation of this strongest counterargu-

ment was provided by Judge Bibas in a case presenting the same

interpretive question that we face here. See Mitchell, 38 F.4th at 392

(Bibas, J., concurring). Judge Bibas acknowledged that he was ini-

tially persuaded that “as a historical matter, a sentence was im-

posed” within the meaning of § 403(b) and, accordingly, that

§ 403(a) didn’t apply. Id. But, he said, “a closer look at the nature

of vacatur changed [his] mind.” Id. Because the law frequently

treats vacatur as “mak[ing] a sentence void from the start,” and be-

cause “Congress legislates against background legal principles,”

Judge Bibas ultimately concluded that the legal validity, rather than

historical imposition, was the interpretive lodestar. Id. Relying on

similar reasoning, several circuit courts have come to the same con-

clusion. See id. at 388 (“[A] vacatur ‘cancels’ the previous sen-

tence.”); Merrell, 37 F.4th at 576 (“[W]e cannot conclude that the

term ‘a sentence’ in § 403(b) refers to a vacated sentence, some-

thing that the existing law treats as null and void.”); Uriarte, 975 F.3d

at 602 (“When Congress crafted this statutory language, it well un-

derstood that vacating a sentence ‘wipe[s] the slate clean.’”) (brack-

ets in original and citation omitted)).

Respectfully, we disagree. As an initial matter, and most ob-

viously, we are bound by our decision in Smith—which, as already

explained, held that, as a plain-language matter, a sentence is “im-

posed” within the meaning of § 403(b) when it is “pronounced” in

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22-13311 Opinion of the Court 15

open court. See 967 F.3d at 1212–13. Smith, we think, requires a

historical-fact understanding of “impos[ition],” rather than a con-

tinuing-legal-effect understanding.

Moreover, and in any event, although the “wipes the slate

clean” argument is by no means insubstantial, it ultimately fails, in

our view, for two related reasons. First, like the interpretive can-

ons, “background principles,” no matter how well established, can’t

control or contradict clear statutory text. Cf. Uriarte, 975 F.3d at 609

(Barrett, J., dissenting) (“[A] background principle cannot over-

come statutory text.”). Second, and separately, it’s not clear that

there is a universal “background principle” that vacatur necessarily

“wipe[s] the slate clean.” One federal statute, for instance, requires

a court resentencing a defendant following vacatur of his original

sentence and a remand to use the sentencing guidelines in effect on

the date of the original (i.e., vacated) sentence. See 18 U.S.C.

§ 3742(g)(1). So too, in interpreting a federal law prohibiting most

felons from “receiv[ing]” firearms, we held that the only thing that

mattered was that the defendant was under a judgment of convic-

tion at the time of receipt, and that it was “not enough” for him to

demonstrate that he later “secure[d] an order … vacating the pred-

icate offense.” United States v. Cabrera, 786 F.2d 1097, 1098 (11th Cir.

1986) (per curiam).

In the end, the “wipes the slate clean” theory simply can’t

overcome the clear textual and contextual indications that

§ 403(b)’s reference to “a sentence” that “has … been imposed”

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16 Opinion of the Court 22-13311

denotes a sentence that was pronounced as a matter of historical

fact, not one that necessarily remains valid as a matter of law.

* * *

One last thing: However tempting it may be to indulge what

we might take to be the First Step Act’s underlying “purposes”—

compassion, leniency, etc.—we’ve said many times that “[e]levating

general notions of purpose over the plain meaning of the text is

inconsistent with our judicial duty to interpret the law as written.”

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 970 (11th Cir.

2016) (en banc). Moreover, and in any event, as we recently reaf-

firmed en banc, “to the extent a statute’s purpose is relevant, the

best evidence of that purpose is the statutory text adopted by both

Houses of Congress and submitted to the President.” Pate, 84 F.4th

at 1206 (quotation marks omitted and alterations adopted). Just so

here. 5

Because the district court pronounced a sentence for Her-

nandez before 2018, “a sentence” was “imposed as of [the] date of

[the First Step Act’s] enactment” within the meaning of § 403(b).

5 Our dissenting colleague mines congressional purpose from some notori-

ously iffy sources—most notably, from representations made (1) by individual

legislators (2) in an amicus brief (3) filed in another case and (4) in another court.

See Dissenting Op. at 14 n.2. But see Blanchette v. Connecticut Gen. Ins. Corps.,

419 U.S. 102, 132 (1974) (observing that statements of legislators in amicus

briefs “‘represent only the personal views of th[o]se legislators, since the state-

ments were [made] after passage of the Act’”).

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22-13311 Opinion of the Court 17

And that means, in turn, that § 403(a)’s modified stacking rule

doesn’t apply to Hernandez’s case. Accordingly, we affirm.

AFFIRMED.

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22-13311 ROSENBAUM, J., Dissenting 1

ROSENBAUM, Circuit Judge, Dissenting:

Sentence vacatur happens. When it does, we have been

very clear about any effect the original sentence might have: zero,

zilch, nada. We’ve said, for instance, that a vacated sentence “be-

comes void in its entirety.” United States v. Burke, 863 F.3d 1355,

1359 (11th Cir. 2017) (citation and quotation marks omitted). And

if that’s not clear enough, we’ve explained that, “[a]fter vacatur, the

original sentencing has no validity or effect. The vacated sentence

. . . is wholly nullified and the slate is wiped clean.” Id. (cleaned

up). Indeed, we’ve noted that “a district court conducts a resen-

tencing as if no initial sentencing ever occurred.” Id. In other

words, as far as the law recognizes, upon sentence vacatur, no sen-

tence has ever been imposed. And Congress knows the law treats

vacated sentences “as null and void.” Merrell, 37 F.4th 571, 576 (9th

Cir. 2022).

Under § 403(b) of the First Step Act, Pub. L. No. 115-391, 132

Stat. 5194, 5221–22 (2018), if the defendant committed his offense

before Congress enacted the First Step Act, the anti-stacking provi-

sion applies to him only “if a sentence for the offense has not been

imposed as of [the First Step Act’s] date of enactment.” Id. § 403(b).

So the question is, for purposes of § 403(b), has “a sentence” been

“imposed” if it is later vacated?

The answer is no. And no amount of textual parsing can

change that. To be sure, as a matter of historical fact, when a sen-

tence is vacated, it was imposed at one point before it became void.

But in normal parlance, we do not speak of a nullity like a vacated

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2 ROSENBAUM, J., Dissenting 22-13311

sentence as though it exists. So a defendant awaiting resentencing

after an appellate court vacates his sentence and remands would

not say that a sentence has been imposed. Nor would the govern-

ment. Nor the presiding judge or an interested observer. In that

scenario, we would not say a sentence has been imposed any more

than we would say a touchdown has been scored if the referee calls

it back because of a penalty. 1

The Majority Opinion disagrees. But the Majority Opinion’s

analysis assumes the answer, and it cannot hold up to scrutiny. For

that reason, I respectfully dissent.

I divide my discussion into two substantive parts. Section I

shows why the Majority Opinion’s analysis fails. And Section II

explains why Section 403(b) does not exclude vacated sentences

from the First Step Act’s anti-stacking provision’s applicability.

I.

1 The Majority Opinion’s efforts to turn this analogy around, see Maj. Op. at

12 n.3, just show why the analogy is apt. The Majority Opinion cites sports

articles where a commentator momentarily declared a touchdown before the

referee called the “touchdown” back. But that’s exactly my point: the articles

recognize that, no matter what happened before the whistle blew, in the end,

there was no touchdown. See, e.g., id. (quoting Jason Owens, Borderline Penalty

Wipes out Spectacular Go-Ahead Chiefs TD in Loss to Bills, Leaving Patrick Mahomes

Livid, Yahoo Sports (Dec. 11, 2023), https://perma.cc/F38A-HLRM for the

proposition that the “touchdown” lasted “[f]or a moment” “[b]ut a critical pen-

alty wiped it out”). So none of those commentators said that a touchdown

was ultimately scored. In other words, everyone understands that “touch-

downs” that are called back legally don’t count. And that’s precisely how we

also understand “sentences” that have been vacated: they don’t count.

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22-13311 ROSENBAUM, J., Dissenting 3

The Majority Opinion says three phrases or words in

§ 403(b)’s text require the conclusion that § 403(b)’s reference to a

sentence that “has been imposed” includes vacated sentences: “a

sentence,” “has been,” and “imposed.” It is mistaken. See Maj. Op.

at 7–13. Below, I explain why. The Majority Opinion has next to

no response to my critique of its textual analysis.

A.

I begin with the Majority Opinion’s analysis of “imposed.”

The Majority Opinion bases its conclusion that “the term ‘imposed’

in § 403(b) refers to the historical fact of pronouncement” on United

States v. Smith, 967 F.3d 1196 (11th Cir. 2020). See Maj. Op. at 10–

11. In fact, the Majority Opinion says that “we are bound by our

decision in Smith” to conclude that § 403(b)’s text refers to the his-

torical fact of imposition. Id. at 14. But that’s not accurate.

Smith was convicted of four charges of carrying a firearm in

relation to three armed robberies and one carjacking. Smith, 967

F.3d at 1210. At the time the district court sentenced him, 18 U.S.C.

§ 924(c) required district courts to stack sentences for the second

and later § 924(c) convictions, even if none had become finalized

before another conviction. Id. Smith appealed on various grounds.

Id. While his appeal was pending, the First Step Act became effec-

tive. Id. Smith argued that “[b]ecause his convictions are on direct

appeal, . . . they . . . have not been ‘imposed’ within the meaning

of the Act.” Id. So he sought retroactive application of the First

Step Act. See id.

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4 ROSENBAUM, J., Dissenting 22-13311

We affirmed Smith’s conviction and sentence. See id. at

1213. At no point was Smith’s sentence vacated. And we never

considered whether § 403(b)’s reference to a sentence that has been

“imposed” includes vacated sentences. See id. Rather, we focused

narrowly on whether Smith’s validly imposed sentence on his valid

conviction was “imposed” while his unsuccessful appeal was pend-

ing. Smith does not control Hernandez’s case for three reasons.

First, it is distinguishable. Smith argued that a sentence is

not “imposed” until it becomes final—that is, until after any ap-

peals are exhausted and the sentence is not vacated. But a chal-

lenged sentence that is not final is not the same thing as a vacated

sentence. A challenged sentence remains effective and in force un-

less and until it is vacated. And a defendant must abide by it. In

contrast, as I’ve noted, the law views a vacated sentence “as if no

initial sentencing ever occurred.” Burke, 863 F.3d at 1359. So upon

vacatur, no sentence exists for a defendant to serve. Given these

realities, a “reasonable person, conversant with the relevant social

and linguistic conventions,” Maj. Op. at 7 (citation and quotation

marks omitted), would speak of and understand that a valid sen-

tence unsuccessfully appealed—though challenged—remained im-

posed while the appeal was pending. After all—and contrary to the

situation when a sentence has been vacated—the mere act of ap-

pealing a sentence does not nullify it.

Second, we have explained that “[t]he holdings of a prior de-

cision can reach only as far as the facts and circumstances frame the

precise issue presented in that case.” Chavers v. Sec’y, Fla. Dep’t of

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22-13311 ROSENBAUM, J., Dissenting 5

Corr., 468 F.3d 1273, 1275 (11th Cir. 2006); see also Watts v. BellSouth

Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“Whatever

their opinions say, judicial decisions cannot make law beyond the

facts of the cases in which those decisions are announced.”). Be-

cause Smith did not consider whether § 403(b)’s term “imposed”

included vacated sentences, it does not govern the answer to that

question.

And third, other courts have reached the same conclusion.

In Smith, we said, “In holding that a sentence is ‘imposed’ for pur-

poses of § 403(b) when it is pronounced in the district court, we

join the other circuits that have decided the issue.” Smith, 967 F.3d

at 1213. We then cited opinions from several other circuits, includ-

ing the Third and Ninth Circuits. See id. (citing United States v

Hodge, 948 F.3d 160, 163 (3d Cir. 2020); United States v. Voris, 964

F.3d 864, 875 (9th Cir. 2020)).

But after those courts issued those opinions, they also

weighed in on the question before us today: whether § 403(b)’s

term “imposed” includes vacated sentences. And while some cir-

cuits have reached the opposite conclusion, both the Third and

Ninth Circuits (as well as the Seventh) have held that it does not.

See United States v. Mitchell, 38 F.4th 382 (3d Cir. 2022) (holding that

§ 403(b) “allow[s] the [First Step] Act’s provisions to apply to a de-

fendant whose pre-Act-unconstitutional sentence is vacated after

the Act’s enactment”); United States v. Merrell, 37 F.4th 571 (9th Cir.

2022) (“[W]e think that the most reasonable reading of § 403(b) is

the one adopted by the Seventh Circuit, which is that a ‘sentence’

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6 ROSENBAUM, J., Dissenting 22-13311

means an existing valid sentence, not a prior invalid one.”). They

could not have done that had their earlier precedents on the issue

Smith addressed bound them.

In short, the fact that a sentence was imposed at one point

but is later vacated tells us nothing about whether § 403(b)’s use of

the term “imposed” includes a vacated sentence. And the Majority

Opinion relies on nothing other than Smith to argue that it does.

B.

Next, I turn to the Majority Opinion’s discussion of the

phrase “a sentence.” The Majority Opinion asserts that “‘a’ denotes

‘any,’” and that therefore “a sentence” includes any sentence, re-

gardless of validity. Maj. Op. at 8. If Congress wanted to limit §

403(b)’s scope to valid sentences, so the Majority Opinion’s argu-

ment goes, it could have written as much, but Congress “[c]onspic-

uously” did not. Id.

I have two text-based responses to that—either of which in-

dependently explains why the Majority Opinion cannot be right.

First, I take no issue with the Majority Opinion’s contention

that Congress could have used the term “valid” or some similar

word in § 403(b). But I find it more “conspicuous” that Congress

apparently has not used the phrase “valid sentence” in the entire

United States Code. Yet it’s clear that the term “sentence” in the

United States Code refers to a valid and unvacated sentence, unless

otherwise expressly indicated. Put simply, Congress, “conversant

with the relevant social and linguistic conventions,” Maj. Op. at 7

(citation and quotation marks omitted), presumes “sentence”

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22-13311 ROSENBAUM, J., Dissenting 7

means a valid, unvacated sentence. And since a valid, unvacated

sentence is the default, “a sentence” refers to only that. The Ma-

jority Opinion has no answer to this problem.

And second, our precedent has construed the term “sen-

tence” not to include a vacated sentence. In Burke, we considered

the “plain and ordinary meaning” of U.S.S.G. § 4A1.1(a), which in-

structed courts to “[a]dd 3 points for each prior sentence of impris-

onment exceeding one year and one month.” 863 F.3d at 1358.

The Sentencing Guidelines defined the term “prior sentence” to

mean “a sentence imposed prior to sentencing on the instant of-

fense.” U.S.S.G. § 4A1.2(a) cmt. 1. After the Burke defendant’s orig-

inal sentence on the “instant offense” was vacated, he was sen-

tenced separately for different offenses. See Burke, 863 F.3d at 1357.

So when his resentencing on the “instant offense” occurred, he had

new “prior” sentences that the court considered but that could not

have been factored into his original sentence because they did not

exist at that time. See id. at 1357–58. We held that these new sen-

tences were properly considered at the new sentencing on the “in-

stant offense.” Id. at 1359.

In reaching that conclusion, we explained that “[t]he phrase

‘sentencing on the instant offense’ refers to the sentencing that oc-

curs after a court vacates an initial sentence because when a court

in our Circuit vacates a sentence it ‘becomes void in its entirety.’”

Id. at 1359 (citations omitted). Put simply, we said, “[a]fter vacatur,

the original sentencing has ‘no validity or effect.’” Id. (citation

omitted). Not only that, we continued, but “the vacated

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8 ROSENBAUM, J., Dissenting 22-13311

sentence—including any enhancements—is wholly nullified and

the slate is wiped clean.” Id. (cleaned up). Indeed, we emphasized,

it’s “as if no initial sentencing ever occurred.” Id. In sum, we held

that the “plain and ordinary meaning” of the term “sentencing”

(and therefore “sentence”) does not include a vacated sentence.

And that’s exactly the point here. “[A] sentence” does not

include within its bounds any vacated sentence because a vacated

sentence is a nullity. So the article “a” before “sentence” can’t add

anything to the meaning of “sentence,” which our caselaw estab-

lishes doesn’t include a vacated sentence.

The Majority Opinion tries to make our reasoning in Burke

irrelevant, saying that “[t]he panel there didn’t purport to define

the term ‘sentence’ for all times and all purposes.” Maj. Op. at 8

n.1. The Majority Opinion skirts the point. The point is that the

Burke panel thought the term “sentencing” carried a “plain and or-

dinary meaning” based on normal usage of the term “sentencing”

in legal text—separate and apart from the rest of its understanding

of the guideline it was construing. See Burke, 863 F.3d at 1359. In-

deed, the Burke panel rested its interpretation of the guideline it was

considering on its understanding of the “plain and ordinary mean-

ing” of “sentencing.” See id. And that “plain and ordinary mean-

ing” that the Burke panel understood does not include vacated sen-

tences. See id.

But the Majority Opinion never explains why our “plain and

ordinary meaning” understanding of “sentence” doesn’t apply to

the First Step Act. Instead, it woodenly parrots Black’s Law

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22-13311 ROSENBAUM, J., Dissenting 9

Dictionary’s definition of “sentence” and then assumes that defini-

tion includes a vacated sentence, even though we’ve said that va-

cated sentences are nullities.

The Majority Opinion never engages with our jurisprudence

that vacated sentences are void from the outset and wipe the slate

clean. In fact, the Majority Opinion bases its interpretation of “sen-

tence” on nothing more than its own understanding of Black’s def-

inition. Textualism is not so one-dimensional. Indeed, “[o]rdinary

meaning and literal meaning are two different things.” Niz-Chavez

v. Garland, 593 U.S. 155, 181 (2021) (Kavanaugh, J., dissenting).

Nor do the Majority Opinion’s efforts to bolster its definition

of “sentence” by pointing to “the juxtaposition of the term ‘sen-

tence’ alongside the phrase ‘has not been’ and the term ‘imposed’”

fare any better. As this dissent explains, if a vacated sentence is void

from the outset so that it is neither a “sentence,” see supra at Section

I.A., nor “imposed,” see supra at Section I.B., (or even just one of

the two) as we understand those terms, then the Majority Opin-

ion’s analysis caves in on itself, see supra at Section I.C. And “the

juxtaposition of [nothing] alongside [nothing] and [nothing]” is

nothing.

C.

As for the phrase “has been,” it adds nothing to the Majority

Opinion’s analysis. If “imposed” doesn’t include vacated sentences,

or if “a sentence” doesn’t include a vacated sentence—and for the

reasons I’ve explained, they don’t—then necessarily a sentence

“has [not] been” imposed if the sentence was vacated. Thus, the

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10 ROSENBAUM, J., Dissenting 22-13311

Majority Opinion’s textual analysis is a house of cards that falls in

on itself if either the premise that “imposed” includes vacated sen-

tences or the premise that “a sentence” includes vacated sentences

is wrong.

II.

So what do “imposed” and “sentence” mean in § 403(b)?

Whatever they mean, the Majority Opinion has failed to show that

the better textual interpretation includes vacated sentences. I’ve

also been unable to establish the Majority Opinion’s premise. And

the Majority Opinion does not even try to explain why my critique

of its textual analysis is wrong (other than its half-hearted effort to

distinguish Burke). That leaves us with two other possibilities: the

better textual interpretation does not include vacated sentences, or

the text is ambiguous. Either way, ultimately, we must conclude

that § 403(b)’s reference to “imposed” does not include a vacated

sentence for at least three reasons.

First, as Judge Bibas explains in United States v. Mitchell, “[h]is-

torical treatment, modern precedent, and a narrow immigration

exception reveal” that the law does not “treat[]” a sentence as im-

posed if it is vacated. 38 F.4th 382, 392 (7th Cir. 2022) (Bibas, J.,

concurring in the judgment). “Nineteenth- and early twentieth-

century courts uniformly understood that, under the law, a vacated

order never happened.” Id. (collecting cases). And modern prece-

dent “agree[s]” that “‘the general rule [is] that when a court vacates

an order . . . , the legal status is the same as if the order never ex-

isted.’” Id. at 393 (citation omitted) (alteration in original). Indeed,

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22-13311 ROSENBAUM, J., Dissenting 11

that’s what Eleventh Circuit precedent holds. See Burke, 863 F.3d

at 1359. As for the immigration exception, it allows courts to con-

sider vacated convictions when deciding whether a criminal con-

viction makes an alien inadmissible—but only if the conviction is

not vacated because it is legally defective. Mitchell, 38 F.4th at 393.

Put another way, even in the immigration context, the law treats

convictions and sentences that have been vacated because they are

legally defective as “void from the start.” Id.

The Majority Opinion tries to overcome these reasons, as-

serting that “‘background principles,’ no matter how well estab-

lished, can’t control or contradict clear statutory text.” Maj. Op. at

15. That is true. But the Majority Opinion has failed to show that

the text clearly counts a vacated sentence as “a sentence” that “has

been imposed.” So the maxim the Majority Opinion invokes has

no place in our analysis.

The Majority Opinion’s contention that there’s no “univer-

sal ‘background principle’ that vacatur necessarily ‘wipe[s] the slate

clean,’” id., fares no better. To support this notion, the Majority

Opinion refers to 18 U.S.C. § 3742(g)(1), which textually requires a

court resentencing a defendant after vacatur of his original sen-

tence and a remand to use the Sentencing Guidelines in effect on

the date of the vacated sentence. See id.

But the existence of that statutory text, in fact, proves the

opposite of the Majority Opinion’s argument. Congress knows the

law treats vacated sentences “as null and void.” Merrell, 37 F.4th at

576. So it would not be necessary for Congress to expressly state

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12 ROSENBAUM, J., Dissenting 22-13311

that the Guidelines in effect at the time of the vacated sentence

control the resentencing if the general background principle were

not that vacated sentences are void from the start. That Congress

did explicitly make the Guidelines in effect at the time of the va-

cated sentence govern the resentencing shows that Congress

knows how to exempt a provision from the usual background prin-

ciples if it wants to. But Congress did not do that here.

In fact, as I’ve noted, see supra Section I.B., Congress speaks

of vacated or invalid sentences only to distinguish them from the

default—valid sentences. In other words, the “social and linguistic

conventions” that inform a “reasonable person[’s]” reading of §

403(b) require the conclusion that Congress’s decision not to cor-

don off vacated sentences does not imply that they are included

with the rest.

As for the Majority Opinion’s reliance on United States v.

Cabrera, 786 F.2d 1097 (11th Cir. 1986) (per curiam), that also fails.

In Cabrera, Cabrera was convicted in state court of felony cocaine

possession. Id. at 1097. Upon his guilty plea, the trial court entered

an order “withholding adjudication,” a disposition that counted as

a conviction under 18 U.S.C. § 922. Id. After his conviction,

Cabrera bought a gun and was indicted for being a felon in posses-

sion of a firearm. Id. But while that charge was pending, the state

court vacated the cocaine conviction. Id. Cabrera argued that his

felon-in-possession charge was invalid because the cocaine convic-

tion was ultimately vacated. See id. at 1098. We disagreed and up-

held the conviction. As we recognized, the vacatur was

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22-13311 ROSENBAUM, J., Dissenting 13

“immaterial since the state court conviction, and the order with-

holding adjudication, were in effect when Cabrera purchased the

gun.” Id.

Cabrera is not instructive here. As our reasoning there

shows, § 922(g)(1)’s whole point is to prohibit firearm possession

by people whose factual status at the time of possession is that of a

felon. So the nature and logic of the crime turn on a defendant’s

factual status at the time of possession. Thus, § 922(g)(1) neces-

sarily treats vacated felony convictions like valid ones if the vacated

conviction had not yet been vacated at the time of possession. But

nothing in § 403(b) logically or otherwise requires the same of va-

cated sentences.

The Majority Opinion also complains that reading § 403(b)’s

reference to “imposed” to exclude vacated sentences creates a

“moving” target, “always capable of evanescing.” Maj. Op. at 10.

But my interpretation does not change the question that a court

must ask when deciding whether the benefits of the First Step Act

apply at a resentencing. The question remains: did the defendant

have a sentence imposed as of the date of enactment? Vacatur

simply informs the court’s answer. If any relevant sentences have

since been vacated, the answer is clearly no. After all, once a sen-

tence is vacated, it is “as if no initial sentencing ever occurred.” See

Burke, 863 F.3d at 1359.

Second, given that the statutory text is not unambiguous—at

least not in the way the Majority Opinion contends—we must use

the other tools in our statutory-interpretation toolbox. That

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14 ROSENBAUM, J., Dissenting 22-13311

means we must “interpret the relevant words not in a vacuum, but

with reference to the statutory context, ‘structure, history, . . . pur-

pose’ . . . . [and] not to mention common sense.” Abramski v. United

States, 573 U.S. 169, 179 (2014) (citation omitted).

The statutory text of the Act makes its “ameliorative,”

United States v. Uriarte, 975 F.3d 596, 603 (7th Cir. 2020) (en banc),

purpose “obvious: to reduce the harsh length of sentences for cer-

tain crimes,” Mitchell, 38 F.4th at 387. Indeed, that’s exactly what §

403(a) did: it reduced the mandatory minimum sentence for certain

firearms offenses. Mitchell, 38 F.4th at 387; see also § 403(a). And it

did so in a way that showed that Congress was concerned about

fairness when it enacted the First Step Act. For instance, before

enactment of the First Step Act, a first-time offender could receive

enhanced penalties, depending on how the government chose to

charge a case. But after the First Step Act, a first-time offender can-

not receive an enhanced penalty under affected criminal provisions.

Rather, only those with prior convictions can receive an enhance-

ment, no matter how the government elects to charge a case.2

2 As an aside that I don’t rely on in discerning the First Step Act’s purpose, I

note that the Fourth Circuit has observed that, within two years of voting for

the First Act, Senators Richard Durbin, Charles Grassley, and Cory Booker—

the First Step Act’s “lead sponsors”—in an amici curiae brief they filed in the

Ninth Circuit in a similar case about § 401 of the same Act, expressed the bi-

partisan consensus that those whose sentences are vacated after the First Step

Act’s effective date can reap the benefits of the Act. United States v. Bethea, 841

F. App’x 544, 551 n.9 (4th Cir. 2021); Br. Amici Curiae in Support of Def.-Ap-

pellant and Vacatur at 1–2, United States v. Mapuatuli, No. 19-10233 (9th Cir.

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22-13311 ROSENBAUM, J., Dissenting 15

Construing the First Step Act to apply to post-enactment

sentencings occurring after a pre-enactment sentence was vacated

furthers that fairness purpose. Agree with it or not, Congress’s so-

lution in § 403(b) makes perfect—common—sense. Congress

didn’t want to burden the courts with resentencing everyone who

had ever been sentenced under § 924(c)—but if a court had to sen-

tence someone, anyway, after § 403(b)’s enactment—whether for

the first time or because an earlier sentence was vacated—in the

interest of fairness, Congress wanted all of them to enjoy the same

benefit of the anti-stacking provision. That choice guaranteed uni-

formity in sentencings that followed the First Step Act’s effective

date without wreaking resentencing or finality havoc.3 In contrast,

the Majority Opinion identifies no reason Congress would have de-

cided to allow invalid sentences to constrain its sentencing reforms.

Instead, the Majority Opinion responds by invoking our

maxim that “‘[e]levating general notions of purpose over the plain

meaning of the text is inconsistent with our judicial duty to inter-

pret the law as written.’” Villarreal v. R.J. Reynolds Tobacco Co., 839

F.3d 958, 970 (11th Cir. 2016) (en banc). And so it is. But once

again, the text does not “plain[ly] mean” that § 403(a) is inapplicable

May 12, 2020). Their brief said, “The question before this Court is whether

Section 401 applies where a prior sentence has been vacated and the case re-

manded for plenary resentencing. The answer, unequivocally, is yes.”

3 This approach is also easier to administer: courts simply apply the Act at all

sentencings occurring after the Act’s enactment, rather than having to ascer-

tain the date of the original sentencing and determine whether it occurred be-

fore or after the Act’s enactment.

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16 ROSENBAUM, J., Dissenting 22-13311

when a sentence has been vacated. And here, the purpose of the

First Step Act informs the meaning of § 403(b).

Third, even if the Court does not wish to rely on purpose—

though Supreme Court precedent still counts it as a tool within the

statutory-interpretation toolbox, see, e.g., Wooden v. United States,

595 U.S. 360, 371–75 (2022) (invoking “[s]tatutory history and pur-

pose” in its analysis)—the last resort is the rule of lenity. The rule

of lenity provides that “when choice has to be made between two

readings of what . . . Congress has made a [punishment], it is ap-

propriate, before we choose the harsher alternative, to require that

Congress should have spoken in language that is clear and defi-

nite.” United States v. Bass, 404 U.S. 336, 347 (1971); see also United

States v. R.L.C., 503 U.S. 291, 305–06 (1992) (noting the applicability

of the rule of lenity to statutory punishments). That rule is “re-

served . . . for those situations in which a reasonable doubt persists

about a statute’s intended scope even after resort to the language

and structure, legislative history, and motivating policies of the

statute.” R.L.C., 503 U.S. at 305–06.

So if the Court does not agree with me that background

principles (and if not that, those principles, along with purpose) un-

ambiguously resolve the question before us to allow those with va-

cated sentences to reap the benefits of the First Step Act, then it

must apply the rule of lenity. That’s so because, in that case, Con-

gress has not spoken clearly of an intent to except vacated sen-

tences from § 403(a)’s reach. And Hernandez’s proposed

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22-13311 ROSENBAUM, J., Dissenting 17

construction of § 403(b) is at least equally as plausible as the Major-

ity Opinion’s.

III.

When we interpret a statute, we “ought not deprive it of the

obvious meaning intended by Congress, nor abandon common

sense.” Uriarte, 975 F.3d at 603; Oak Grove Res., LLC v. Dir., 920 F.3d

1283, 1290 (11th Cir. 2019) (“[A]s the Supreme Court has empha-

sized, ‘[w]e need not leave our common sense at the doorstep

when we interpret a statute.’”). Congress determined that a person

without a prior conviction before later violation of § 924(c) was not

a “true” repeat offender under the First Step Act. It also deter-

mined that going forward, from the date of the First Step Act’s en-

actment, no one who was not a “true” repeat offender should be

sentenced as one. In other words, § 403(a)’s non-stacking rule

should be applied at all sentencings that occur after enactment of

the First Step Act—regardless of whether those are initial sen-

tencings or resentencings because a pre-Act sentencing was va-

cated. Any other reading abandons the Act’s text, purpose, and

common sense. So I would vacate Hernandez’s sentence and re-

mand for a full resentencing. Because the Majority Opinion has

not done so, I respectfully dissent.