United States v. Hector Uriarte

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-2092

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

HECTOR URIARTE,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:09-cr-00332-3 — Joan B. Gottschall, Judge.

____________________

ARGUED MAY 13, 2020 — DECIDED SEPTEMBER 15, 2020

 A disagreement between the panel assigned in this case and the panel

assigned in United States v. Bethany, 19-1754, on the interpretation of the

First Step Act was submitted to the entire court pursuant to Circuit Rule

40(e). The members of the court in regular active service determined that

en banc consideration was appropriate. The en banc court, including a

senior circuit judge assigned to the panels in both cases, then determined

that, because the arguments were ably set forth in the parties’ briefs and

arguments before the panels, additional oral argument before the en

banc court would be an inefficient use of judicial resources. Accordingly,

the case was taken under advisement by the en banc court on the briefs

and oral arguments submitted to the panels.

2 No. 19-2092

____________________

Before SYKES, Chief Judge, and FLAUM, EASTERBROOK,

RIPPLE, KANNE, ROVNER, WOOD, HAMILTON, BARRETT,

BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

RIPPLE, Circuit Judge. Section 403 of the First Step Act of

2018 amended the mandatory minimum sentence for certain

firearm offenses. Although sentencing reform is generally

prospective, Congress specifically mandated that these

amendments were to apply to an offense committed before

enactment “if a sentence for the offense has not been

imposed as of such date of enactment.” First Step Act of

2018, Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222

(codified at 18 U.S.C. § 924 note). We vacated, on unrelated

grounds, Hector Uriarte’s initial sentence before the

enactment of the First Step Act. United States v. Cardena, 842

F.3d 959 (7th Cir. 2016). At resentencing, the district court

ruled that he was entitled to be sentenced under the

provisions of the Act. We agree with the district court and

therefore affirm its judgment.

I

BACKGROUND

Hector Uriarte was a member of a gang that conspired to

kidnap and rob drug dealers for money and drugs. He was

indicted for, and convicted of, several federal offenses,

including racketeering, drug crimes, and two counts of using

a firearm to commit a kidnapping in violation of 18 U.S.C.

§ 924(c). A conviction for a single count of using a firearm to

commit a crime of violence like kidnapping carries a

mandatory minimum penalty of five years’ imprisonment.

No. 19-2092 3

Id. § 924(c)(1)(A)(i). That mandatory minimum is elevated to

seven years if the firearm was “brandished” during the

course of the crime. Id. § 924(c)(1)(A)(ii).

Before the First Step Act, a second violation of § 924(c)

triggered a much higher 25-year mandatory minimum, even

if the two counts were asserted in a single indictment. The First

Step Act amended § 924(c) so that only a second § 924(c)

violation committed after a prior conviction for the same

offense will trigger the 25-year minimum. First Step Act

§ 403(a); see United States v. Davis, 139 S. Ct. 2319, 2324 n.1

(2019).

At the time of Mr. Uriarte’s sentencing in 2013, the

district court calculated that he was subject to a mandatory

minimum of 42 years’ imprisonment: 10 years from the

various racketeering and drug charges, 7 years for the first

firearm offense because the court determined that it had

involved brandishing a weapon, and 25 years for the second

firearm offense. The court sentenced Mr. Uriarte to 50 years

in prison, a sentence above the mandatory minimum but

well below the Guidelines recommendation.

Along with several codefendants, Mr. Uriarte appealed

his convictions and sentence. Cardena, 842 F.3d 959. Among

other arguments, we reviewed a challenge to his sentence

based on the Supreme Court’s decision in Alleyne v. United

States, 570 U.S. 99 (2013). Alleyne held that brandishing is an

element of the § 924(c) offense that must be found by a jury.

In Mr. Uriarte’s case, the court rather than the jury had

found the element of brandishing. Cardena, 842 F.3d at 1000–

02. We therefore vacated his sentence and remanded so that

4 No. 19-2092

Mr. Uriarte could be resentenced without the brandishing

1

enhancement for the first firearm offense.

At the time of the enactment of the First Step Act,

Mr. Uriarte was a convicted, but unsentenced, federal

defendant. When the time for his sentencing arrived, he

asked the district court to apply § 403 of the Act. The court

agreed, and over the Government’s objection, it sentenced

him under the provisions of the First Step Act. As

Mr. Uriarte’s second firearm offense no longer triggered a

25-year mandatory minimum, the court sentenced him to 20

1 Specifically, in United States v. Cardena, we concluded that, in light of

Alleyne v. United States, 570 U.S. 99, 103 (2013), Mr. Uriarte was

“improperly subjected to a 7-year mandatory minimum on count 8 for

brandishing a firearm where the jury only convicted [him] of using or

carrying a firearm.” 842 F.3d 959, 1000 (7th Cir. 2016). We explained that,

when sentencing Mr. Uriarte, “the district court departed downward

from life to 18 years and then imposed the consecutive 7-year and

25-year mandatory minimums, for a total term of 50 years’

imprisonment. Because the mandatory minimum of 7 years went into the

district court’s determination of [Mr. Uriarte’s] ultimate sentence[], we

cannot say that the Alleyne error was harmless.” Id. at 1001.

We further noted that the case was “unusual because it is not often

that the guidelines range is only life imprisonment.” Id. Thus, in order to

identify “a lower bracket for purposes of deciding what sentence to

give” Mr. Uriarte, the district court “treat[ed] the mandatory minimum”

as that “lower bracket.” Id. at 1001–02. The Government had argued in

Cardena that the Alleyne error “‘had absolutely no effect’” on the district

court’s calculation of Mr. Uriarte’s sentence because the sentence was

“above the mandatory minimum.” Id. at 1001 (citation omitted). We

rejected this argument because the district court had “in effect” used the

mandatory minimum as the starting point in its calculation. Id. at 1001.

We held that Mr. Uriarte was therefore “entitled to resentencing.” Id. at

1002.

No. 19-2092 5

years’ imprisonment based on its recalculation of the

mandatory minimum: 10 years for the various drug and

racketeering offenses, 5 years for the first firearm offense

without the brandishing enhancement, and 5 years for the

2

second firearm offense. The Government now appeals

Mr. Uriarte’s new sentence.

2 The actions of both the district court and the parties reflect the

understanding that our remand in Cardena was for a plenary

resentencing. Our instructions in Cardena, read in light of our settled law,

make clear that the remand was for a full, or plenary, resentencing.

As a general matter, we have distinguished three types of remand.

United States v. Simms, 721 F.3d 850, 852 (7th Cir. 2013). The two more

limited remands are (1) those in which “the appellate court seeks a ruling

or advice from the trial court and[,] pending its receipt of that ruling or

advice[,] retains jurisdiction over the appeal,” and (2) those in which “the

appellate court returns the case to the trial court but with instructions to

make a ruling or other determination on a specific issue or issues and do

nothing else.” Id. (emphasis added). Cardena does not implicate either of

these limited remands.

In the third and “most common form of remand,” the “general

remand[,] the appellate court returns the case to the trial court for further

proceedings consistent with the appellate court’s decision, but

consistency with that decision is the only limitation imposed by the

appellate court.” Id. Moreover, we have noted that, when we disturb one

aspect of a sentencing package, our preference is for a full resentencing:

Because a criminal sentence is normally a package that

includes several component parts (term of

imprisonment, fine, restitution, special assessment,

supervised release), when one part of the package is

disturbed, we prefer to give the district court the

opportunity to reconsider the sentence as a whole so as

to “effectuate its sentencing intent.” Pepper v. United

States, 562 U.S. 476, 507 (2011). Vacating the sentence

(continued … )

6 No. 19-2092

( … continued)

and returning the case to the district court for imposition

of a new sentence allows the district court to

“reconfigure the sentencing plan” so as to “satisfy the

sentencing factors in 18 U.S.C. § 3553(a).” Id.

United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016).

“[I]t is possible in some cases for us to reverse and remand on certain

issues and yet not unbundle the package.” United States v. Smith, 103 F.3d

531, 534 (7th Cir. 1996). “In other cases,” however, “our action may likely

undermine the entire sentencing intent of the district judge. In the latter

cases, full resentencing is appropriate.” Id.

Both the language that we employed in our Cardena remand, and the

nature of the error that formed the basis of Mr. Uriarte’s initial

sentencing, point clearly to the conclusion that our remand required

plenary resentencing. In Cardena, we stated: “We VACATE the sentence[]

of … Hector Uriarte on count 8 and REMAND for resentencing

consistent with this opinion.” 842 F.3d at 1002. This broad language

mandates a complete resentencing. See United States v. Young, 66 F.3d

830, 836 (7th Cir. 1995) (stating that the language, “‘[w]e therefore vacate

the district court’s sentence and remand the case for resentencing

consistent with this opinion’” was “broad,” and that the language, we

“‘vacate[] and the case [is] remanded for resentencing on the issue of

obstruction of justice’” was “limited” (emphasis added)). Additionally, the

district court had structured Mr. Uriarte’s sentence on the basis of an

Alleyne error, and we determined that it was impossible to “unbundle”

this error from the rest of his sentence. Cardena, 842 F.3d at 1001–02

(noting that the district court used the mandatory minimum as the

starting point of its calculation); see also United States v. White, 406 F.3d

827, 832 (7th Cir. 2005) (“We recognize that in a sentencing

determination potential enhancements are inter-connected and the

district court’s original sentencing intent may be undermined by altering

one portion of the calculus.”); cf. Pepper, 562 U.S. at 507) (“[A]n appellate

court when reversing one part of a defendant’s sentence ‘may vacate the

entire sentence.’” (quoting Greenlaw v. United States, 554 U.S. 237, 253

(continued … )

No. 19-2092 7

II

DISCUSSION

A.

Mr. Uriarte’s case presents a straightforward factual

situation and an equally straightforward legal issue for our

resolution.

At the time of the enactment of the First Step Act,

Mr. Uriarte was a convicted, but unsentenced, federal

defendant. He was awaiting sentencing. An earlier

sentencing proceeding, conducted before the enactment of

the First Step Act, had resulted in a sentence that we decided

could not stand. We vacated that sentence, rendering it a

nullity, and directed the district court to resentence

Mr. Uriarte. See Cardena, 842 F.3d at 1000–02; Pepper v. United

States, 562 U.S. 476, 508 (2011) (Vacatur “wipe[s] the slate

clean.”); United States v. Barnes, 948 F.2d 325, 330 (7th Cir.

1991) (“[T]he effect of the order to vacate was to nullify

[Mr. Uriarte’s] sentence.”). While Mr. Uriarte was awaiting

sentencing, Congress enacted the First Step Act.

The Act’s language is also quite simple. Congress

amended the law so that contemporaneous § 924(c)

convictions no longer trigger a 25-year mandatory minimum

sentence. First Step Act of 2018, § 403(a), Pub. L. No. 115-391,

132 Stat. 5194, 5221–5222 (Dec. 21, 2018). The cases to which

the amendment applies are set forth in § 403(b), which states:

( … continued)

(2008))). Thus, our remand in Cardena required that the district court

conduct a plenary resentencing.

8 No. 19-2092

APPLICABILITY TO PENDING CASES.—This

section, and the amendments made by this

section, 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.

When Congress drafted this language, it departed explicitly

from the usual rule that criminal sentencing statutes are

applicable only to crimes committed after the effective date

of the statute. See Dorsey v. United States, 567 U.S. 260, 272–73

(2012) (explaining the default rule that, pursuant to the

federal saving statute, 1 U.S.C. § 109, the reduced penalties

of a criminal statutory amendment are generally not

applicable to offenses committed before the statute was

enacted).

Congress thereby ensured that all individuals awaiting

sentencing in the United States courts on the effective date of

the Act would be sentenced in accord with the policy

decisions it had just made. To accomplish this goal,

Congress made no distinction between defendants who had

never been sentenced and those whose sentence had been

vacated fully and who were awaiting the imposition of a

new sentence. In this way, Congress stanched, to the degree

that it could without overturning valid and settled

sentences, the mortmain effect of sentencing policies that it

considered no longer in the Nation’s best interest. It ensured,

moreover, all persons awaiting sentencing on the effective

date of the Act would be treated equally, a value long

cherished in our law. Id. at 276–77.

This interpretation is both straightforward and

compatible with the purpose of the First Step Act. We begin

No. 19-2092 9

with the language at issue here: “if a sentence for the offense

has not been imposed as of such date of enactment.”

§ 403(b). Congress writes statutes against the backdrop of

the existing legal landscape. The Supreme Court has

reminded us that our “elected representatives, like other

citizens, know the law.” Cannon v. Univ. of Chi., 441 U.S. 677,

696–97 (1979). When Congress crafted this statutory

language, it well understood that vacating a sentence

“wipe[s] the slate clean.” Pepper, 562 U.S. at 508; see also

United States v. Mobley, 833 F.3d 797, 802 (7th Cir. 2016)

(“When we vacate a sentence and order a full remand, the

defendant has a ‘clean’ slate—that is, there is no sentence

until the district court imposes a new one.”). We presume

that Congress is aware of the established meaning of legal

terms. NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)

(“Where Congress uses terms that have accumulated settled

meaning under either equity or the common law, a court

must infer, unless the statute otherwise dictates, that

Congress means to incorporate the established meaning of

these terms.”).

Here, Congress has not given any indication that it

intended to depart from settled principles. See Chambers v.

NASCO, Inc., 501 U.S. 32, 47 (1991). Therefore, we read

§ 403(b) against the background principle that a court

resentences “on a clean slate.” Krieger v. United States, 842

F.3d 490, 505 (7th Cir. 2016). Nothing in the text of the

statute suggests that Congress intended to create an

exception to the ordinary effect of the vacatur of a sentence.

Indeed, it is clear that the statute reflects a congressional

intention that its policy decision apply to both pre-Act

offenders who have never been sentenced and to pre-Act

offenders whose sentences had been vacated before the date

10 No. 19-2092

of enactment, but who had not been resentenced as of that

3

date.

Whether an unsentenced defendant falls into one group

or the other, he lacks a sentence. The statutory language

makes clear that, on sentencing day, both should be treated

under the same congressional policy.

B.

Despite this straightforward application of the text,

which is compatible with the statute’s manifest remedial

purpose, it is possible, to borrow a phrase from Lewis

Carroll, to take select words of the statute and “pay them

4

extra” to come up with a plausible alternative reading. This

approach introduces a significant amount of ambiguity and

internal contradiction into the basic interpretative inquiry.

Let us see why this alternative approach falls on its own

sword.

We could take the phrase “a sentence … has not been

imposed,” § 403(b), and read it—as the Government

proposes—as referring to the sentence that we held null and

3 Although Mr. Uriarte, who was sentence-less when the First Step Act

was enacted, falls neatly within the statute’s language, the same would

not be true for a defendant who was under a sentence at the time of

enactment, but subsequently had his sentence vacated. Nevertheless,

that scenario is not before us.

4 Lewis Carroll, Through a Looking-Glass and What Alice Found There 133

(Boston, Thomas Y. Crowell & Co. 1893) (“‘When I make a word do a lot

of work like that,’ said Humpty Dumpty, ‘I always pay it extra.’”). When

applying plain-meaning methodology, one should not have to pay

words extra.

No. 19-2092 11

void long before the enactment of the First Step Act. The first

issue with this approach is that it would require, of course,

that we read this statutory phrase solely through an

historical lens and pay no attention at all to a “legal lens.”

But, as we already have explained, Congress writes statutes

against the background of existing law, and nothing in the

statutory language suggests that Congress meant to abandon

its usual course of legislating in light of existing law.

We also could pay the words of the statute a great deal

extra by departing completely from the text and invoking

our own policy preferences. In United States v. Hodge, the

Third Circuit, after deciding that the defendant had not been

granted a full resentencing, wrote in pure dicta that

“drawing the line at initial-sentence imposition is preferable

to drawing the line at ultimate-sentence imposition. If we let

all defendants awaiting resentencing capitalize on the First

Step Act, we would favor defendants whose appeals—for

whatever reason—took longer to resolve.” 948 F.3d 160, 164

(3d Cir. 2020).

Preferable? To whom? Neither the Third Circuit nor the

Seventh Circuit has the prerogative of policy choice in this

matter. As the Supreme Court noted in Dorsey, and as we

noted in Pierson, any reduction of criminal penalties will

involve difficult line drawing with respect to pending cases.

Dorsey, 567 U.S. at 280; United States v. Pierson, 925 F.3d 913,

927 (7th Cir. 2019), vacated on other grounds, 140 S. Ct. 1291

(2020). Here, Congress, attempting to cure what it saw as an

inappropriate sentencing structure, determined that its

revision should control any situation where a district court

still had to impose a sentence. Considering that Congress

had determined that the earlier sentencing structure resulted

12 No. 19-2092

in sentences that were too long and unfair, it is difficult to

fault Congress for ensuring that those sentences would not

be imposed on defendants yet to be sentenced. It wanted the

unfair practice stopped upon enactment. Period.

Nor should we ignore the Supreme Court’s discussion in

Dorsey that Congress generally tries to avoid “radically

different sentences” for individuals “who each engaged in

the same criminal conduct … and were sentenced at the same

time.” Dorsey, 567 U.S. at 276–77 (emphasis added).

There is no reason to think that Congress excluded from

its remedy pre-Act offenders facing plenary resentencing.

Pre-Act offenders whose sentences have been vacated are

similarly situated to individuals who have never been

sentenced. The text of the Act is silent as to any intent of

Congress to inflict on them the exact harsh and expensive

mandatory minimum sentences that § 403 restricts and

reduces. That result would be fundamentally at odds with

the First Step Act’s ameliorative nature. When “construing a

statute, courts ought not deprive it of the obvious meaning

intended by Congress, nor abandon common sense.” United

States v. Bhutani, 266 F.3d 661, 666 (7th Cir. 2001) (citation

omitted).

If we are striving to pay the text extra, there is one more

argument that we might tease out of the text. We could rest

on the fact that the statute turns on the imposition of “a

sentence,” not “the sentence,” “the final sentence,” or “a

sentence that continues to legally bind the defendant.”

According to this argument, because “a” is an indefinite

article, it “points to a nonspecific object, thing, or person that

No. 19-2092 13

5

is not distinguished from the other members of a class.”

Therefore, the argument goes, the phrase “a sentence” refers

to the long-ago vacated sentence rather than the sentence to

be imposed by the sentencing court in the future.

To make this one-letter article support the weight of a

“plain meaning” argument, we would have to pay it much

more than a little extra. The Government draws significance

from the fact that, if Congress had intended § 403 to apply to

cases which had not reached a final disposition, “it easily

6

could have” employed language such as “the final

sentence” or “a sentence that continues to legally bind the

defendant.” By the same token, however, one could draw

significance from the fact that Congress did not use the

words “an original sentence” or “an initial sentence.”

Congress did not qualify the terms of the statute because it

clearly applied to all defendants awaiting a valid sentence at

the time of its enactment. The Government’s reading places

great weight on a single article, “a.” Yet the text of the First

Step Act gives reason to doubt that the word “a” was

intended to carry such import. Had Congress intended the

phrase “a sentence” to convey a very broad meaning, it

could have used the word “any,” as it did earlier in the same

sentence: “This section … shall apply to any offense … if a

sentence … has not been imposed … .” § 403(b) (emphasis

added).

5 BRYAN A. GARNER, GARNER’S MODERN ENGLISH USAGE 991 (4th ed.

2016).

6 Appellee’s Br. 16.

14 No. 19-2092

Further, the surrounding text of the statute indicates that

Congress intended § 403 to apply to all defendants awaiting

sentence at the time of its enactment. Courts have “long

refused to construe words ‘in a vacuum.’” Gundy v. United

States, 139 S. Ct. 2116, 2126 (2019) (quoting Davis v. Michigan

Dep’t of Treasury, 489 U.S. 803, 809 (1989)). “[R]easonable

statutory interpretation must account for both ‘the specific

context in which … language is used’ and ‘the broader

context of the statute as a whole.’” Util. Air Reg. Grp. v. EPA,

573 U.S. 302, 321 (2014) (quoting Robinson v. Shell Oil Co., 519

U.S. 337, 341 (1997)).

Section 403 is distinctive in that it contains a provision

that specifically addresses its application to pending cases.

Congress took great care to ensure that defendants who had

been convicted but not sentenced would not be denied the

benefits of § 403. Congress made crystal clear that § 403

reaches all defendants whose sentences had not been

imposed before enactment—even those who had been

convicted before the Act. The text gives us no reason to

believe that Congress excluded from this expansive reach

certain defendants awaiting sentencing just because those

defendants previously had received invalid sentences.

Paying extra to rely on this argument is a poor deal

7

indeed.

7 Because the plain language of the statute requires reversal of the

district court’s judgment, we need not address the rule of lenity.

However, if both readings render the text ambiguous, the rule of lenity

favors the interpretation set forth in this opinion. United States v. Bass,

404 U.S. 336, 348 (1971) (“[W]here there is ambiguity in a criminal

statute, doubts are resolved in favor of the defendant.”).

No. 19-2092 15

Just as we could pay the words of the statute extra to

support a meaning other than the obvious one, we could

also enlist our own precedent and “pay it extra” by forcing

the precedent to spread its dominion into unintended fields.

We could say, as the Government requests, that our recent

opinion in Pierson, 925 F.3d 913, is consistent with employing

an exclusively historical lens to the Act’s use of the word

“imposed.” The Government’s argument relies heavily on

our statement in Pierson that, “[i]n common usage in federal

sentencing, a sentence is ‘imposed’ in the district court,

regardless of later appeals.” Id. at 927.

To use Pierson as a weight-bearing pillar, we would have

to pay it a great deal extra. Pierson addressed an entirely

different question. Pierson appealed his original sentence

and, while his appeal was pending, the First Step Act

became effective. We held, correctly, that because Pierson

had a sentence in place at the time of the Act’s enactment,

the Act did not apply to him. Pierson’s situation gave us no

cause to consider whether plenary resentencing awaited

Pierson in the future.

Moreover, the language from Pierson, “regardless of later

appeals,” 925 F.3d at 927, has never been construed to apply

to defendants whose sentences were vacated. Other cases

that have relied upon Pierson for this principle have involved

a defendant either directly appealing his sentence or seeking

a reduction of a sentence that was imposed long before the

8

Act’s enactment. In Pierson, we held that “the Act cannot

8 See United States v. Gonzalez, 949 F.3d 30, 42–43 (1st Cir. 2020), petition

for cert. filed (U.S. June 22, 2020) (No. 19-8783); United States v. Aviles, 938

F.3d 503, 510 (3d Cir. 2019) (“Congress did not refer to ‘finality,’ and

(continued … )

16 No. 19-2092

justify a reduction” to a sentence that was imposed prior to

the Act. United States v. Jackson, 940 F.3d 347, 353 (7th Cir.

2019). Pierson did not address the situation here: whether the

Act applies to a defendant who was not subject to a sentence

when the Act became effective.

Pierson is consistent with Congress’s intent not to reopen

finished proceedings because of the change in the law

effected by the First Step Act. In choosing not to write

§ 403(b) to allow reductions to valid sentences that already

had been imposed, Congress expressed a policy preference

in favor of settled expectations and ease of administration.

Nevertheless, in crafting clarifying legislation—in

attempting to “set things right”—Congress naturally wanted

to reach all cases where there was not already a sentence in

( … continued)

imposition and finality are two different concepts.”); United States v.

Jordan, 952 F.3d 160, 171–72 (4th Cir. 2020), petition for cert. filed (U.S. Sept.

1, 2020); United States v. Richardson, 948 F.3d 733, 748–50 (6th Cir. 2020),

petition for cert. filed (U.S. July 1, 2020) (No. 19-8878); United States v.

Jackson, 940 F.3d 347, 353 (7th Cir. 2019); United States v. Sullivan, 781 F.

App’x 553, 554 (7th Cir. 2019); United States v. Ruff, 795 F. App’x 796, 797

(11th Cir. 2020); United States v. Gelin, 810 F. App’x 712, 726 (11th Cir.

2020), petition for cert. filed (U.S. July 27, 2020) (No. 20-5178); United States

v. Garcia, No. 17-13992, 2019 WL 7503482, *1 (11th Cir. July 9, 2019);

Young v. United States, 943 F.3d 460, 462 (D.C. Cir. 2019); United States v.

Williams, 03-CR-795, 2019 WL 3842597, at *4 n.5 (E.D.N.Y. Aug. 15, 2019);

United States v. Garcia, No. 6:05-cr-00006-1, 2019 WL 4039638, at *1 (W.D.

Va. Aug. 27, 2019); United States v. King, No. 1:03-cr-00182, 2020 WL

1274998, at *1–2 (S.D. Ind. Mar. 16, 2020); State v. Hinton, No. 2019-097,

2020 WL 4380703, at *4 (Vt. July 31, 2020). United States v. Hodge, 948 F.3d

160 (3d Cir. 2020), discussed supra at page 11, is also distinguishable

because it involved a limited remand.

No. 19-2092 17

place. There were no countervailing considerations

suggesting that Congress wanted to deprive anyone without

a set sentence of the benefit of these new, preferred

sentencing standards. And, as we already have noted,

Congress generally strives to avoid “radically different

sentences” for defendants “who each engaged in the same

criminal conduct … and were sentenced at the same time.”

Dorsey, 567 U.S. at 276–77.

III

The First Step Act is an historic, bipartisan attempt by

Congress to take the lessons of the past and to formulate a

9

new sentencing policy for the United States. Although it

elected not to reopen sentences in place on the date of

enactment, Congress carefully crafted a provision to ensure

that its new policy determination effectively controlled

every sentence after that date. We may disagree with where

and how Congress drew the line, but it was Congress’s

prerogative to draw that line. It had a difficult task. We

ought not make the task more difficult by ignoring the clear

command of the legislative directive.

9 In a parallel case pending before the Ninth Circuit, members of the

Legislative Branch, who were the principal drafters of the First Step Act,

submitted an amici curiae brief seeking to preserve Congress’s “intent to

allow pre-Act offenders whose sentences are vacated to benefit from the

Act’s ameliorative provisions at resentencing.” Brief for United States

Senators Richard J. Durbin, Charles E. Grassley, and Cory A. Booker as

Amici Curiae in Support of the Defendant-Appellant, 2–3, United States v.

Mapuatuli (9th Cir.) (No. 19-10233).

18 No. 19-2092

Accordingly, the judgment of the district court is

affirmed.

AFFIRMED

No. 19-2092 19

BARRETT, Circuit Judge, with whom BRENNAN and

SCUDDER, Circuit Judges, join, dissenting. Hector Uriarte was

initially sentenced for firearm offenses before Congress

passed the First Step Act, but we vacated his sentence on un-

related grounds before the Act’s effective date. United States v.

Cardena, 842 F.3d 959 (7th Cir. 2016). Despite the district

court’s imposition of the initial sentence, the majority con-

cludes that “a sentence for the offense ha[d] not been imposed

as of [the] date of enactment” in Uriarte’s case. See First Step

Act § 403(b). I respectfully disagree.

As the majority sees it, a sentence “has not been imposed”

as of the date of enactment if on that date the defendant is not

subject to a legally binding sentence. The defendant might be

in that position because he has never been sentenced; he

might be in that position because he is waiting to be

resentenced. Either way, the majority says, the defendant is

sentence-free on the date that counts—the date that the First

Step Act passed.1

1 Because Uriarte was not subject to a legally binding sentence on the

date of enactment, this case does not present the question whether a post-

enactment vacatur would retroactively have the same effect—that is,

whether the post-enactment nullification of a sentence would also mean

that for legal purposes “a sentence ha[d] not been imposed” as of the date

of enactment. Cf. United States v. Jackson, No. 15-cr-453, 2019 WL 2524786

(N.D. Ohio June 18, 2019) (addressing that factual scenario). Under that

broader theory, the Act would apply to all plenary resentencings after the

Act’s effective date, regardless of the date of vacatur. It bears emphasis

that nothing in the majority opinion—which turns entirely on the fact that

Uriarte was not subject to a sentence on the Act’s effective date—suggests

an answer to that question. On the contrary, the majority expressly re-

frains from addressing it. See Maj. Op. at 10 n.3.

20 No. 19-2092

I find the government’s reading of the relevant language

far more persuasive. The government argues that “a sen-

tence … has not been imposed” as of the date of enactment

when, as a matter of historical fact, no sentence has ever been

imposed before that date. Uriarte indisputably had been sen-

tenced before the First Step Act took effect. Our subsequent

vacatur of his sentence does not change that fact, so, the gov-

ernment contends, the Act does not apply to Uriarte.

These competing readings reflect different takes on the

statute’s use of the present-perfect tense in the phrase “has

not been imposed.” The present-perfect tense “denotes an act,

state, or condition that is now completed or continues up to

the present.” THE CHICAGO MANUAL OF STYLE ¶ 5.132 (17th ed.

2017). The government reads the phrase “has not been im-

posed” as denoting an act that has not been completed. That

act—sentencing—had been completed in Uriarte’s case, even

though it was subject to repetition; so, the government says,

the First Step Act does not apply. The majority, by contrast,

reads the phrase as denoting a condition that does not exist

on the date of enactment. Because that condition—being sub-

ject to a valid sentence—did not exist for Uriarte on the rele-

vant date, the majority concludes that the Act governs his re-

sentencing.

The grammatical structure conceivably leaves some room

for either reading, but only the government’s is consistent

with the specific words used in the sentence. First and fore-

most, the statute draws the line on the date when a sentence

was “imposed.” In the context of sentencing, “imposed” con-

notes an action by a district court, rather than the status of a

defendant. See Young v. United States, 943 F.3d 460, 463 (D.C.

Cir. 2019) (“[I]n ordinary usage a sentence is ‘imposed’ when

No. 19-2092 21

a district court pronounces it.”). That is why it is perfectly co-

herent to describe the procedural posture of a case by saying,

“a sentence was imposed last year, but it has since been va-

cated on appeal.” The imposition of a sentence is a historical

fact that can be disaggregated from the legal status of the sen-

tenced person. And the statute’s use of a verb that describes

the action of the district court puts the focus on the historical

fact.

Consistent with this understanding, our opinion in United

States v. Pierson interpreted the word “imposed” to denote a

past act, not an ongoing condition. 925 F.3d 913, 927–28 (7th

Cir. 2019). In determining whether a sentence had been “im-

posed” as of the date of enactment, we did not examine

Pierson’s legal status to determine whether he was subject to

an ongoing sentence on that date. Nor did we consider

whether some plenary resentencing awaited Pierson in the fu-

ture. Instead, we reasoned that a sentence had been imposed

in the past. We explained, “a sentence is ‘imposed’ in the dis-

trict court, regardless of later appeals.” Id. at 927. And later

we noted that a sentence is imposed “when the district court

sentenced the defendant.” Id. at 928. That language treats the

district court’s action, not the defendant’s legal status, as the

relevant marker. The former is a historical fact; the latter is a

condition that is subject to change as a result of “later ap-

peals.” The Third Circuit has read both the statute and Pierson

the same way. United States v. Hodge, 948 F.3d 160, 163–64 (3d

Cir. 2020) (asserting that “a sentence is ‘imposed’ … ‘within

the meaning of’ the First Step Act once ‘a sentencing order has

been entered by a district court’” (quoting Pierson, 925 F.3d at

927–28)); see also id. at 163 (“[W]e conclude [that] the First Step

Act intentionally subjected any defendant who had any sen-

tence imposed to the original § 924(c) mandatory minimum,

22 No. 19-2092

even if their sentence was subsequently modified.” (emphasis

added)).2

As further support for the government’s reading, the stat-

ute turns on the imposition of “a sentence,” not “the sentence,”

“the final sentence,” or “a sentence that continues to legally

bind the defendant.”3 The word “a” is an indefinite article—

that is, it “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). The statute’s use of the word “sentence” in a

nonspecific sense is inconsistent with the majority’s conten-

tion that the statute refers exclusively to an extant sentence.

Though the majority resists the word’s ordinary meaning, the

indefinite article “a” is broad enough to refer to any sentence

2 In Hodge, the Third Circuit had affirmed the defendant’s sentence as

to his § 924(c) offense, vacated it as to his territorial offenses, and re-

manded it to the district court for partial resentencing. 948 F.3d at 161–62.

The defendant was still awaiting partial resentencing on the First Step

Act’s effective date, but because he remained subject to his § 924(c) sen-

tence, that case is at least arguably distinguishable from this one—alt-

hough I later address the possibility that the scope of our vacatur and re-

mand in Cardena left Uriarte in the same position as the defendant in

Hodge. Nonetheless, the Third Circuit’s reasoning did not turn on that dis-

tinction. Instead, its reasoning is consistent with mine: it treated the dis-

trict court’s act of imposing a sentence, not the defendant’s legal condition,

as determinative. See also id. at 162 (“[W]e hold [that] the new § 924(c)

mandatory minimum does not apply to defendants initially sentenced be-

fore the First Step Act’s enactment.” (emphasis added)).

3 By contrast, in the immediately preceding subsection of the First Step

Act, Congress made the application of mandatory minimums contingent

on a “final” conviction. First Step Act § 403(a). It could easily have im-

posed the same requirement on the triggering “sentence” in sec-

tion 403(b).

No. 19-2092 23

that has been imposed for the offense, even one that was sub-

sequently vacated. Rather than being strained, as the majority

suggests, this nonspecific meaning is consistent with common

usage. If asked in 2016 whether “a sentence” had been im-

posed on Uriarte, one could easily respond “yes, but it was

vacated on appeal.”

Dismissing what it perceives to be an excessive focus on

the statute’s language, the majority grounds its reasoning in

nontextual background principles. In particular, it asserts that

resentencing happens on a “clean slate” after vacatur and that

a vacated initial sentence therefore no longer carries any legal

effect. See Krieger v. United States, 842 F.3d 490, 505 (7th Cir.

2016). Congress, it claims, must have legislated against this

background principle when it enacted the First Step Act. And

finding no evidence that Congress intended to depart from

this principle, the majority presents its interpretation as self-

evident.

There are several problems with this reasoning, and the

first is that the majority significantly overreads what it means

to say that the defendant will be sentenced on a “clean slate.”

A complete vacatur wipes the slate clean insofar as the de-

fendant will be sentenced anew. Pepper v. United States, 562

U.S. 476, 507–08 (2011) (holding that the law of the case doc-

trine does not bind the district court in a de novo resentenc-

ing); United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir.

1992) (“[T]he district court will be writing on a clean slate and

may entertain any and all objections, even those not raised at

the earlier sentencing.”). But a complete vacatur does not re-

quire the district court to proceed as if the initial sentencing

never happened. In fact, the Sentencing Reform Act instructs

24 No. 19-2092

district courts to do the very opposite: a district court impos-

ing a sentence on remand must apply the Sentencing Guide-

lines “that were in effect on the date of the previous sentencing of

the defendant prior to the appeal.” 18 U.S.C. § 3742(g)(1) (em-

phasis added); see also Dorsey v. United States, 567 U.S. 260, 275

(2012) (describing the Sentencing Reform Act as a background

principle against which Congress legislates). The Sentencing

Reform Act does not control this case because the disputed

part of Uriarte’s sentence is dictated by statute rather than de-

rived from the Guidelines. Still, the Act’s default rule for re-

sentencing—that the Guidelines apply as they existed at the

time of the initial sentencing—belies the majority’s claim that

Congress legislates against a background understanding that

a vacatur erases the initial sentence for all purposes. On the

contrary, it’s not unusual for the date of the initial sentencing

to control the law applicable to a resentencing—even when

more favorable law is enacted in the interim. See United States

v. Hughes, 733 F.3d 642, 645–47 (6th Cir. 2013) (holding the Fair

Sentencing Act inapplicable to a defendant who was awaiting

resentencing on the Act’s effective date).

But even if the majority’s “clean slate” principle were

sound, a background principle cannot overcome statutory

text.4 The majority’s interpretation turns almost entirely on

what it thinks Congress must have considered during the leg-

islative process. See Walton v. United Consumers Club, Inc., 786

4It bears emphasis that because the traditional tools of statutory in-

terpretation yield an answer to the statute’s meaning, the rule of lenity

does not apply. See United States v. Shabani, 513 U.S. 10, 17 (1994) (“The

rule of lenity … applies only when, after consulting traditional canons of

statutory construction, we are left with an ambiguous statute.”).

No. 19-2092 25

F.2d 303, 310 (7th Cir. 1986) (“Courts should confine their at-

tention to the purposes Congress sought to achieve by the

words it used. We interpret texts.”). It posits that Congress

wanted to treat a vacatur as giving a defendant a fresh start

on the law as well as on the weighing of the facts so that the

benefit of this remedial statute would extend more broadly.

But every statute requires a resolution of competing policy in-

terests, and Congress “may, for all we know, have slighted

policy concerns on one or the other side of the issue as part of

the legislative compromise that enabled the law to be en-

acted.” Artuz v. Bennett, 531 U.S. 4, 10 (2000). And on the other

side of that compromise are some benefits to Congress’s deci-

sion that the majority does not acknowledge.

For example, the majority’s approach puts a great deal of

weight on the precise decretal language of an appellate

opinion. Consider a potential problem posed by the appellate

opinion in this very case. The majority says that in Cardena,

we vacated Uriarte’s sentence as a whole, albeit with

instructions clarifying that the scope of the remand only

covered the first firearm offense. See Cardena, 842 F.3d at 1002

(explaining that Uriarte is “entitled to resentencing” because

his entire below-guidelines sentence was anchored to the

Alleyne error on the sentence for the first firearm offense). I

have assumed that this reading of Cardena is correct because

it does not affect my reasoning in this case. But the final words

of Cardena invite another possibility—that we vacated only

the sentence for Uriarte’s first firearm offense, leaving the

remainder of the sentence—including the sentence for the

second firearm offense—intact. See id. (“We VACATE the

sentences of Tony Sparkman … and Hector Uriarte on count 8

[the first firearm offense] and REMAND for resentencing

consistent with this opinion.” (emphasis added)). The

26 No. 19-2092

practical difference between a narrow vacatur and a complete

vacatur can be slight. See United States v. Barnes, 660 F.3d 1000,

1006 (7th Cir. 2011) (clarifying that an opinion vacating an

entire sentence can still limit the scope of a remand). But

under the majority’s interpretation of section 403, the

applicability of the First Step Act to Uriarte’s second firearm

offense would depend entirely on which way we read

Cardena. If we vacated his entire sentence, he was not subject

to a sentence for any firearm offense on the date that the First

Step Act was enacted. But if we only vacated the sentence for

the first firearm offense, then the sentence for Uriarte’s second

firearm offense was not “wiped clean,” and he remained

subject to it on the date of enactment. Cf. Hodge, 948 F.3d at

163 & n.4 (holding the First Step Act inapplicable when a

limited vacatur left the federal firearm offense intact). It takes

the majority a three-page footnote to parse whether the

remand in Uriarte’s case was limited or plenary. Drawing the

line at the date of the initial sentencing, by contrast, makes it

much easier to determine whether the Act applies to a given

defendant. I am not persuaded by the majority’s assumption

that Congress must have subordinated this administrability

advantage to the policy advantages that the majority invokes

in support of its interpretation.

After all, the superiority of one policy advantage over an-

other is not self-evident—instead, it lies in the eye of the be-

holder. The majority champions its interpretation as the most

equitable one because it ensures that “all persons awaiting

sentencing on the effective date of the Act would be treated

equally, a value long cherished in our law.” Maj. Op. at 8. But

the majority’s interpretation produces its own problematic

disparities, as illustrated by this very case.

No. 19-2092 27

Uriarte had a codefendant, Tony Sparkman. See United

States v. Sparkman, No. 17-3318, 2020 WL

5247575, --- F.3d --- (7th Cir. 2020). They were convicted for

the same offenses, both were sentenced before the First Step

Act passed, and both sentences were vacated in the same con-

solidated opinion. But Uriarte pushed his resentencing date

back by seeking several continuances so that he could fire and

then rehire counsel for his case. The majority’s interpretation

gives Uriarte a sentence 20 years shorter than Sparkman’s—

despite, it should be noted, Uriarte’s greater participation in

the crime—because he delayed the court with continuances.

See Hodge, 948 F.3d at 164 (considering a similar hypothetical

disparity and rejecting an interpretation that might allow it);

Hughes, 733 F.3d at 646 (noting that the “disparities that the

Court cited in Dorsey were those between initial sentencings

that occurred on the same day,” as opposed to equally objec-

tionable disparities “between initial sentencings and sen-

tencings ‘upon remand.’”). As the Third Circuit observed in

United States v. Hodge, “drawing the line at initial-sentence im-

position is preferable to drawing the line at ultimate-sentence

imposition. If we let all defendants awaiting resentencing cap-

italize on the First Step Act, we would favor defendants

whose appeals—for whatever reason—took longer to re-

solve.” Id. The majority thinks it is most equitable to treat Uri-

arte as similarly situated to defendants awaiting sentencing in

other cases rather than to the codefendant with whom he was

tried and initially sentenced. I am much less confident either

that this is the most equitable result or that Congress shared

the majority’s view. Speculating about congressional desires

is a dicey enterprise, which is one reason among many that

we should stick to the text.

28 No. 19-2092

As we have said before, “[a]ny reduction in criminal pen-

alties or in a Sentencing Guideline can pose difficult line-

drawing in applying the reduction to pending cases.” Pierson,

925 F.3d at 927. Here, Congress picked a line: the applicability

of the First Step Act turns on whether a sentence had been

imposed on the defendant before the date of enactment. The

majority is certainly correct that the vacatur of Uriarte’s initial

sentence altered his legal status and required the court to re-

sentence him de novo. But that does not change the historical

fact that the district court did in the past impose a sentence

for his firearm offense. Nor does it mean that what was im-

posed by the court in 2013 was not then “a sentence.” Vacatur

may metaphorically “wipe the slate clean,” but it is not a time

machine. Under the plain text of the statute, the First Step Act

does not apply to Uriarte.