Petition for Writ of Certiorari — Corey Deyon Duffey and Jarvis Dupree Ross, Petitioners v. United States

Supreme Court briefApr 19, 2024

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APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A—Fifth Circuit Opinion (Feb.

2, 2024) ................................................................. 1a

APPENDIX B—Excerpts of Duffey

Resentencing Hearing Transcript (Mar.

2, 2022) ............................................................... 19a

APPENDIX C—Duffey Judgment On

Resentencing (Mar. 14, 2022) ............................ 33a

APPENDIX D—Excerpts of Ross

Resentencing Hearing Transcript (Mar.

24, 2022) ............................................................. 55a

APPENDIX E—Ross Judgment On

Resentencing (Mar. 29, 2022) ............................ 66a

APPENDIX A

_________

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________

No. 22-10265

_________

FILED: February 2, 2024

_________

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

COREY DEYON DUFFEY; JARVIS DUPREE ROSS; TONY R.

HEWITT,

Defendants–Appellants.

_________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:08-CR-167-1

_________

Before SOUTHWICK, ENGELHARDT,

Circuit Judges.

and

WILSON,

CORY T. WILSON, Circuit Judge:

The primary issue in this appeal is whether § 403 of

the First Step Act applies to post-enactment

resentencings of defendants whose pre-enactment

sentences were vacated after the law was enacted. It

does not, so Appellants’ § 403 claims lack merit.

Further, Appellant Duffey’s challenge to the

application of a sentencing enhancement at his

resentencing and Appellant Hewitt’s challenge to his

remaining § 924(c) convictions both fail. Accordingly,

we affirm as to all issues.

Appellants Corey Deyon Duffey, Jarvis Dupree

Ross, and Tony R. Hewitt were convicted in 2009 on

numerous counts of conspiracy, attempted bank

robbery, and bank robbery, as well as using a firearm

in furtherance thereof, in violation of 18 U.S.C.

§ 924(c). See United States v. Duffey, 456 F. App’x 434,

438 & nn.1–4 (5th Cir. 2012). On direct appeal, this

court reversed the convictions for the attempted

robberies and the corresponding firearms charges,

affirmed the other convictions, and remanded to the

district court for resentencing. Id. at 444–45.

Appellants were each resentenced in 2012. We

affirmed these new sentences. See United States v.

Ross, 582 F. App’x 528, 529–30 (5th Cir. 2014).

At the time we affirmed Appellants’ new sentences,

an initial violation of § 924(c) required a mandatory

minimum sentence of five years. 18 U.S.C.

§ 924(c)(1)(A)(i) (effective 2012–2018). If a “second or

subsequent” violation was committed, each such

conviction was to result in a mandatory sentence of

“not less than 25 years[.]” § 924(c)(1)(C)(i). Also at that

time, the initial and subsequent convictions could be

“stacked,” such that a first, second, and any

subsequent convictions could arise out of the same

incident or conduct. See Deal v. United States, 508

U.S. 129, 132–33 (1993). Thus, when Appellants were

convicted under § 924(c)(1)(A)(i) for using a firearm in

connection with a conspiracy to commit bank robbery,

they received five-year minimum sentences. Because

they were also convicted for subsequent § 924(c)

violations arising out of the same conduct—

convictions that were stackable—Appellants each

received 25-year mandatory minimum sentences for

every additional § 924(c) conviction.

Appellants filed unsuccessful motions to vacate, set

aside, or correct their sentences under 28 U.S.C.

§ 2255. See United States v. Ross, No. 3:15-CV-3233B-BH, No. 3:08-CR-167-B-BH(3), 2017 WL 3328120,

at *1 (N.D. Tex. June 22, 2017), adopting report and

recommendation, 2017 WL 3314195, at *1 (N.D. Tex.

Aug. 3, 2017); United States v. Duffey, No. 3:15-CV0500-B-BH, No. 3:08-CR-0167-B(1), 2017 WL

6989111, at *1 (N.D. Tex. Dec. 29, 2017), adopting

report and recommendation, 2018 WL 461126, at *1

(N.D. Tex. Jan. 17, 2018); United States v. Hewitt, No.

3:16-CV-603-B-BH, No. 3:08-CR-167-B(2), 2018 WL

3853708, at *1 (N.D. Tex. July 15, 2018), adopting

report and recommendation, 2018 WL 3845232, at *1

(N.D. Tex. Aug. 13, 2018).

In 2020, Appellants filed motions for authorization

to file successive § 2255 motions in light of the

Supreme Court’s decision in United States v. Davis,

139 S. Ct. 2319, 2336 (2019), which held that

conspiracy-predicated § 924(c) convictions do not

qualify as “crimes of violence.” Appellants argued that

several of their convictions—and resulting 25-year

mandatory

minimum

sentences—were

unconstitutional because the predicate offense for the

enhancement, i.e., conspiracy to commit bank robbery,

no longer qualified as a crime of violence under

§ 924(c)(3). We granted Appellants’ motions.

Appellants then filed their successive habeas

applications in the district court, which granted relief.

The district court vacated Appellants’ § 924(c)

conspiracy convictions and accompanying sentences,

vacated the sentences on all remaining convictions,

and ordered resentencing.

Prior to Appellants’ resentencing hearings, they

each filed objections to their respective presentence

reports (PSR), arguing, inter alia, that § 403 of the

First Step Act of 2018 applied to their resentencing.

Specifically, they argued they were subject only to the

five-year mandatory minimum sentence set by

§ 924(c) under § 403, which eliminated sentence

stacking.1 The Government and the probation officer

responded that § 403 did not apply because Appellants

were serving valid sentences at the time that the First

Step Act was enacted on December 21, 2018. The

Government maintained this view during Duffey’s

and Ross’s resentencings. However, the Government

changed its position by the time of Hewitt’s

resentencing. Similarly, on appeal, the Government

Section 403(a) of the First Step Act subjects defendants to

only the five-year minimum sentence for multiple convictions

arising out of the same conduct, when no other § 924(c)

conviction has become “final.” First Step Act of 2018, Pub. L.

No. 115-391, § 403(a), 132 Stat. 5194, 5221. Section 403(b)

provides that the Act “shall apply to any offense that was

committed before the date of enactment of th[e] Act, if a

sentence for the offense has not been imposed as of such date

of enactment.” Id. § 403(b), 132 Stat. 5194, 5222.

asserts that § 403 should apply across the board to

Appellants’ resentencings.

In addition to Appellants’ § 403 arguments, Duffey

and Hewitt each raised additional arguments at their

2022 resentencings that are at issue in this appeal.

Duffey objected to the application of a two-level

adjustment under U.S.S.G. § 2B3.1(b)(4)(B) for

physical restraint of the victim, arguing that even

though the bank manager was held at gunpoint,

moved to the vault, and ordered to open it during one

of the bank robberies, he was not physically

restrained as defined in the Guidelines. Hewitt moved

to dismiss his remaining § 924(c) convictions, arguing

that the district court’s vacatur of his § 924(c)(1)(A)(i)

conviction required vacatur of all his § 924(c)

convictions.

The district court overruled Appellants’ objections—

including Duffey’s physical-restraint enhancement

objection— and denied Hewitt’s motion to dismiss.

Appellants were then resentenced as follows: Duffey

received 1,560 months imprisonment; Ross received

1,625 months imprisonment; and Hewitt received

1,625 months imprisonment. Appellants now

challenge those sentences.

II.

We review questions of statutory interpretation de

novo. United States v. Tilford, 810 F.3d 370, 371 (5th

Cir. 2016). We review the district court’s

interpretation and application of the Sentencing

Guidelines de novo and its factual findings for clear

error. United States v. Garcia, 857 F.3d 708, 711–12

(5th Cir. 2017). On matters of jurisdiction, our review

is de novo, using the same standard as the district

court. Gulf Petro Trading Co. v. Nigerian Nat’l

Petroleum Corp., 512 F.3d 742, 746 (5th Cir. 2008).

Questions of law relating to a § 2255 application are

also reviewed de novo, while factual findings are

reviewed for clear error. United States v. Wiese, 896

F.3d 720, 723 n.3 (5th Cir. 2018).

III.

We must first determine whether § 403(a) of the

First Step Act applies to Appellants’ latest

resentencings. We conclude it does not.

“[W]e start where we always do: with the text of the

statute.” Van Buren v. United States, 141 S. Ct. 1648,

1654 (2021). Section 403(b) of the First Step Act states

that § 403(a) “shall apply to any offense that was

committed before the date of enactment of th[e] Act, if

a sentence for the offense has not been imposed as of

such date of enactment.” In the mine run of pending

cases, application of this language is straightforward.

But does the First Step Act’s reach encompass prior

offenses for which a pre-Act sentence is later vacated?

Can it be said that such a sentence “has not been

imposed”?

These questions have “vexed[] and split[] our sister

circuits.” United States v. Mitchell, 38 F.4th 382, 386

(3d Cir. 2022). On one side of the split, the Third,

Fourth, and Ninth Circuits have held that the First

Step Act “requires [courts] to treat the vacated

sentence as if it were never imposed[]” so that § 403(b)

encompasses offenses involving the post-enactment

vacatur of pre-enactment sentences. United States v.

Merrell, 37 F.4th 571, 577–78 (9th Cir. 2022); see also

Mitchell, 38 F.4th at 389; United States v. Bethea, 841

Fed. App’x 544, 550–51 (4th Cir. 2021).2 On the other

side, the Sixth Circuit has held that § 403(b) does not

apply

when,

notwithstanding

post-enactment

vacatur, “a sentence had been imposed” prior to the

date of enactment. United States v. Jackson, 995 F.3d

522, 525 (6th Cir. 2021); see also United States v.

Carpenter, 80 F.4th 790, 791 (6th Cir. 2023)

(Kethledge, J., joined by Sutton, C.J., Thapar, and

Bush, JJ., concurring in the denial of rehearing en

banc) (“[F]or purposes of precluding the Act’s

retroactivity as to the sentence for a particular

conviction—the imposition of any sentence will do.

For § 403(b) simply asks whether, as of the Act’s date

of enactment (December 21, 2018), ‘a’ sentence has or

‘has not been imposed[.]’”) (citation omitted). As

explained below, we agree with the Sixth Circuit’s

interpretation of § 403(b) because it is the reading

more faithful to the statute’s text.

“When faced with questions of statutory

construction, ‘we must first determine whether the

statutory text is plain and unambiguous’ and, ‘[i]f it

is, we must apply the statute according to its terms.’”

Asadi v. G.E. Energy (USA) L.L.C., 720 F.3d 620, 622

(5th Cir. 2013) (quoting Carcieri v. Salazar, 555 U.S.

Additionally, the Seventh Circuit has held that § 403(b)

applies to a convicted defendant whose sentence had been

vacated prior to the enactment date but remained

unsentenced on the enactment date. See United States v.

Uriarte, 975 F.3d 596, 601 (7th Cir. 2020) (en banc). Notably,

the Seventh Circuit appears to have left open the question of

whether § 403(b) would apply to post-enactment vacaturs. See

id. at 605 (discussing “Congress’s intent not to reopen finished

proceedings because of the change in the law effected by the

First Step Act”) (emphasis in original).

379, 387 (2009)). “The plainness or ambiguity of

statutory language is determined by reference to the

language itself, the specific context in which that

language is used, and the broader context of the

statute as a whole.” Id. (quoting Robinson v. Shell Oil

Co., 519 U.S. 337, 341 (1997)). “If the statutory text is

unambiguous, our inquiry begins and ends with the

text.” Id. (quoting BedRoc Ltd. v. United States, 541

U.S. 176, 183 (2004)).

Appellant Hewitt and the Government both argue

that § 403(b)’s reference to “a sentence” is “ambiguous

as to whether it refers to the historical fact of the

imposition of a sentence, regardless of its validity, or

whether it refers to the imposition of a sentence with

continuing validity.” The thrust of their ambiguity

argument stems from § 403(b)’s use of the presentperfect tense in the phrase “has not been imposed[.]”

The Government maintains that this language

“indicates that Congress was not focused on the single

point in time of the pronouncement of the judgment,

but rather on the sentence’s continuing validity.” We

disagree.

As an initial matter, we have previously said that a

sentence is “imposed” “when the district court

pronounces it[.]” United States v. Gomez, 960 F.3d

173, 178 (5th Cir. 2020). Thus, the phrase “has not

been imposed” suggests an act yet to be completed by

the district court. See Uriarte, 975 F.3d at 606–07

(Barrett, J., dissenting). Put differently, whether a

sentence has been “imposed” appears to hinge on a

district court’s action or inaction—not on a

defendant’s status. See id. at 607. Because of this,

§ 403(b)’s use of “imposed” puts the “focus on the

historical fact” of a sentence’s imposition. Id.

Couple this with § 403(b)’s delineation that the First

Step Act applies to defendants for whom “a sentence

. . . ha[d] not been imposed” as of the enactment date.

Again, in the mine run of cases, the statute’s

application is easy: Criminal defendants who had not

yet had a sentence imposed as of December 21, 2018,

fall within the First Step Act’s ambit. Defendants who

already had a sentence imposed by then do not.

Congress unambiguously drew the line for the First

Step Act’s application based on the date a sentence

was imposed.

But in today’s case, a question remains: Does

§ 403(b)’s use of “a sentence” mean any sentence—

including subsequently vacated ones—or, as the

parties argue, does it mean only a sentence with

continuing validity? The answer is the former.

Section 403(b)’s text does not indicate that Congress

intended for the First Step Act to apply only to a

sentence with continuing validity. The Government’s

argument to the contrary tracks with the Fourth and

Seventh Circuits’ reasoning: “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[.]” Bethea, 841 F. App’x

at 549 (quoting Uriarte, 975 F.3d at 604 (majority

opinion)). But that gun kicks as hard as it shoots. If

Congress meant for the First Step Act’s retroactivity

bar to apply only to valid sentences, it could easily

have said so. Instead, § 403(b)’s use of “the indefinite

article ‘a’ is broad enough to refer to any sentence that

that has been imposed for the offense, even one that

was subsequently vacated.” Uriarte, 975 F.3d at 608

(Barrett, J., dissenting).

10a

True enough, Congress’s use of “a sentence”—as

opposed to “any sentence” or “a valid sentence”—could

perhaps have been clearer. But “[t]he mere

observation that the statutory language could be

made clearer does not make it unclear in the first

place.” Jackson, 995 F.3d at 526. Nor does it make it

ambiguous. Indeed, “[u]nambiguity does not require

perfection . . . . [W]e should not reject [§ 403(b)] just

because it could be made even more clear.” Bethea,

841 F. App’x at 557 (Quattlebaum, J, dissenting).

The parties urge us—admittedly with support from

our sister circuits—to focus on the impact of sentence

vacatur when interpreting § 403(b). But vacatur has

no effect on our interpretation. As the Sixth Circuit

made clear in Jackson, “vacatur does not erase

[Appellants’] prior sentence[s] from history.” 995 F.3d

at 525 (quoting Vacate, BLACK’S LAW DICTIONARY

(11th ed. 2019)). “[E]liminating a sentence’s

prospective legal effect only ‘wipe[s] the slate clean’

looking forward.” Id. (quoting Pepper v. United States,

562 U.S. 476 (2011)). Indeed, “vacatur wipes the slate

clean insofar as the defendant will be sentenced

anew,” but it “does not require the district court to

proceed as if the initial sentencing never happened.”

Uriarte, 975 F.3d at 608 (Barrett, J., dissenting)

(citing Pepper, 562 U.S. at 507–08).3 This makes good

sense; otherwise, one who, as here, has been in prison

for over a decade serving later-vacated sentences

would nonetheless qualify as “a defendant on whom a

sentence has not been imposed” as of the First Step

In any event, even if this “ ‘clean slate’ principle were

sound, a background principle cannot overcome statutory

text.” Id. at 609.

11a

Act’s enactment date. Carpenter, 80 F.4th at 792

(Kethledge, J., concurring) (quoting Merrell, 37 F.4th

at 578 (Boggs, J., dissenting)).

We find a helpful analogue in 18 U.S.C. § 3742(g) for

how “a defendant’s earlier sentencing” serves “as a

temporal marker that identifies the substantive rules

. . . that the district court must apply when [re-]

sentencing a particular defendant.” Id. That statute,

which addresses “[s]entencing upon remand[,]”

provides that a “district court to which a case is

remanded . . . shall apply the guidelines . . . that were

in effect on the date of the previous sentencing of the

defendant prior to the appeal.” § 3742(g) (emphasis

added). As with § 403(b), § 3742(g)’s reference to the

reality of a defendant’s prior sentencing does not give

the vacated sentence legal effect. Carpenter, 80 F.4th

at 792 (Kethledge, J., concurring). But it pegs the

rules that apply to a resentencing on remand to the

historical fact of the prior sentence. Section 403(b)

does the same thing. To construe it differently, a

district court would be forced paradoxically to

“recognize the fact of the defendant’s prior sentence

for purposes of determining his guidelines range . . .

but at the same time pretend that sentence never

happened for purposes of determining the defendant’s

mandatory minimum.” Id. We do not read § 403(b)’s

text to create such incongruity.

To summarize, we read § 403(b) as drawing the line

for § 403(a)’s application at the date on which a

sentence—whether later-vacated or with ongoing

validity—was imposed. We do not discern ambiguity

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in § 403(b)’s language. 4 Cf. Gomez, 960 F.3d at 177

(“The Act itself plainly states that § 403 is not

retroactive: It applies to an offense committed before

its December 21, 2018 effective date only ‘if a sentence

for the offense ha[d] not been imposed as of such

date.’ ”); see also United States v. Smith, 967 F.3d

1196, 1212 (11th Cir. 2020) (“There is no ambiguity in

§ 403(b). It plainly draws a line based on the Act’s

enactment date and provides that whether the

amendments in § 403(a) apply to a case depends on

which side of that line the imposition of the sentence

falls.”).5 Our analysis thus “begins and ends with the

text.” Asadi, 720 F.3d at 622 (citation omitted).

Applying that text, because sentences for Appellants’

offenses had been imposed upon them prior to the

First Step’s Act’s December 21, 2018 enactment

date—even though those sentences were later vacated

in 2020—§ 403(a) of the First Step Act does not apply,

as the district court correctly held.

Because we hold that § 403(b) is unambiguous, we reject

Duffey and Ross’s arguments that the rule of lenity requires

us to read § 403(b) in the light most favorable to them. See

Shular v. United States, 140 S.Ct. 779, 787 (2020) (“The rule

[of lenity] ‘applies only when, after consulting traditional

canons of statutory construction, we are left with an

ambiguous statute.’ ”) (quoting United States v. Shabani, 513

U.S. 10, 17 (1994)).

Gomez and Smith both interpreted § 403(b) in the context

of sentences that had been imposed by the district court prior

to the First Step Act’s enactment date but remained pending

on direct appeal as of that date. However, the point remains:

Those cases agreed that § 403(b)’s language is clear and

unambiguous.

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IV.

Duffey also challenges his latest resentencing, in

which the district court applied a two-level

enhancement under U.S.S.G. § 2B3.1(b)(4)(B) for the

physical restraint of a victim during a robbery. In

2008, Duffey and his cohorts robbed a series of banks

throughout the Dallas-Fort Worth Metroplex. During

these robberies, each bank’s manager “was held at

gunpoint and moved to the vault and told to open the

vault.” Because of this, the district court applied the

enhancement to Duffey’s sentence for the physical

restraint of the branch managers.

Before we address the merits of Duffey’s argument,

we must first ensure that we have appellate

jurisdiction over this issue. United States v. Hanner,

32 F.4th 430, 434 (5th Cir. 2022) (quoting Castaneda

v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999) (“We must

always be sure of our appellate jurisdiction and, if

there is doubt, we must address it, sua sponte if

necessary.”)). Citing Hanner, the Government

suggests we lack jurisdiction because “Duffey’s

successive Section 2255 motion . . . w[as] limited to . . .

Duffey’s Section 924(c) convictions premised on

conspiracy to commit bank robbery[.]” This is so, the

Government proposes, because Duffey’s physicalrestraint enhancement argument falls outside the

scope of our underlying 2021 grant of leave to file the

§ 2255 motion at issue here.

In Hanner, the defendant challenged whether his

manslaughter conviction—entirely separate from

those encompassed in the grant of his application to

file a successive habeas application—qualified as an

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Armed Career Criminal Act predicate after a change

in the law. Id. Because “Hanner neither sought nor

obtained permission to file a successive § 2255 motion

raising [that] claim[,]” the district court lacked

jurisdiction to consider the issue, and Hanner’s appeal

was dismissed to the extent that issue was raised. Id.

Duffey’s challenge to the two-level Guidelines

enhancement diverges substantially from Hanner.

His motion to file a successive habeas application was

cabined to whether “he was convicted and sentenced

under § 924(c)(1) based on a predicate offense that is

not a ‘crime of violence.’ ” But the district court

eventually vacated Duffey’s conspiracy-based § 924(c)

convictions and sentences, leading to vacatur of his

other sentences as well. Therefore, Duffey does not

raise a separate conviction, as in Hanner. Instead, he

questions imposition of the physical-restraint

enhancement to his new sentences growing out of his

latest habeas petition. We have previously rejected,

albeit in a different procedural posture, a

jurisdictional challenge to a district court’s

consideration of sentencing enhancements on

resentencing after a successful § 2255 challenge to a

§ 924(c) conviction. See United States v. Benbrook, 119

F.3d 338, 339–40 (5th Cir. 1997); see also United

States v. Robinson, 769 F. App’x 140, 141 (5th Cir.

2019) (reviewing a challenge to sentencing

enhancement applied at resentencing following a

successful successive § 2255 motion). The same result

obtains here, and we have jurisdiction to consider

Duffey’s claim.

Turning to the merits, we agree with the

Government that the district court properly applied

15a

the

physical-restraint

enhancement.

Section

2B3.1(b)(4)(B) imposes a two-level enhancement “if

any person was physically restrained to facilitate

commission of the offense or to facilitate escape.” The

Guideline commentary defines “physically restrained”

as “the forcible restraint of the victim such as by being

tied, bound, or locked up.” Garcia, 857 F.3d at 712

(quoting U.S.S.G. §§ 1B1.1 cmt. n.1(K), 2B3.1 cmt.

n.1). “By the use of the words ‘such as,’ it is apparent

that ‘being tied, bound, [and] locked up’ are listed by

way of example rather than limitation.” Id. (citation

omitted). Thus, “it is possible for a district court to

conclude that a defendant physically restrained his

victims without evidence that he actually tied, bound,

or locked them up.” Id. (citation omitted).

Duffey relies primarily on Garcia to support his

position. There, during an armed robbery, a defendant

held a gun to an employee’s head and demanded that

he get down on the floor. Id. at 710. Based on this

conduct, the district court approved the two-level

physical-restraint enhancement. On appeal, however,

we held that though there was “little doubt that at

least one of the employees felt restrained[,]” the

robbery victims “were not subjected to the type of

physical restraint that victims experience when they

are tied, bound, or locked up.” Id. at 713; see also

U.S.S.G. §§ 1B1.1 cmt. N.1(K), 2B3.1 cmt. N.1. We

reasoned that because the situation in Garcia was no

different than “what would normally occur during an

armed robbery[,]” the physical-restraint enhancement

did not apply. Id. at 713–14.

Duffey contends that Garcia encapsulates his

situation, so the enhancement should not apply in his

case, either. But Garcia is distinguishable. In Garcia,

16a

we noted that courts had previously found the

physical-restraint enhancement appropriate “where

defendants force their victims to move into confined

spaces at gunpoint and instruct the victims not to

leave.” Id. at 712 (collecting cases). The panel stressed

that Garcia was not such a case because “the

defendants allowed the employees to remain where

they were and never forced them to move to a confined

space.” Id. Duffey’s case is more akin to United States

v. Frank, 223 F. App’x 412 (5th Cir. 2007). There, we

found the physical-restraint enhancement applicable

because the defendants “escorted a security guard and

several casino employees to the casino manager’s

office at gunpoint and instructed them not to leave.”

Frank, 223 F. App’x at 413.

As in Frank, in the string of bank robberies in which

Duffey was involved, Duffey and his partners in crime

did more than “simply stand[] near a door, hold[] a

firearm, and instruct[] a victim to get on the ground[.]”

Garcia, 857 F.3d at 713. The district court’s findings,

adopted from Duffey’s PSR, show that in each robbery,

the banks’ managers “w[ere] held at gunpoint and

moved to the vault and told to open the vault.” At

Duffey’s March 2022 resentencing hearing, the

district court noted that Duffey and his cohorts

“robbed . . . bank[s] in a takeover fashion[,]” and, in at

least one of these robberies, pointed a gun at a bank

manager’s head and forced the manager to the vault

area to open it, such that there were “more than

enough facts to support restraint.” The district court’s

findings are plausible in light of the record as a whole.

United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.

2011) (citations omitted). The district court therefore

did not clearly err, and it follows that the court did not

17a

abuse its discretion in applying the § 2B3.1(b)(4)(B)

enhancement in Duffey’s 2022 resentencing.

We turn finally to whether the district court erred in

determining that it did not have jurisdiction to vacate

Hewitt’s remaining § 924(c) convictions. We affirm the

district court on this point as well.

Before his 2022 resentencing, Hewitt moved to

dismiss his convictions predicated on substantive

bank robbery. Hewitt argued that because his initial

convictions based on § 924(c) were vacated as part of

his successful § 2255 application, his subsequent

convictions must also be dismissed given that they

were premised on previously vacated counts. The

district court denied Hewitt’s motion for lack of

jurisdiction, reasoning that Hewitt was required to

seek leave in this court to file a new § 2255 application

raising this claim. On appeal, Hewitt argues that

another § 2255 application is unnecessary. We

disagree.

When determining whether the district court has

jurisdiction to decide the merits of a successive § 2255

application, we require that the defendant pass two

“gates.” Wiese, 896 F.3d at 723. At the first gate, the

defendant must make a “prima facie showing” in this

court that his claims result from either “(1) a new rule

of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable, or (2) newly discovered, clear

and convincing evidence that but for the error no

reasonable fact finder would have found the

defendant guilty.” Id. (quotation marks and citation

omitted). At the second gate, the defendant must

“actually prove at the district court level that the

18a

relief he seeks relies either on a new, retroactive rule

of constitutional law or on new evidence.” Id. Hewitt

passed through neither gate on the point he now seeks

to raise.

We granted Hewitt’s motion to file a successive

§ 2255 application regarding whether “his 18 U.S.C.

§ 924(c) convictions that were predicated on his

convictions for conspiracy to commit bank robbery

should be vacated.” Several of Hewitt’s convictions

were predicated on conspiracy and were in fact

vacated. But his remaining five § 924(c) convictions

were based on the substantive crime of bank robbery.

These remaining § 924(c) convictions fall outside of

our authorization for Hewitt’s instant § 2255 motion.

Thus, the district court held—correctly—that it

lacked jurisdiction to reach those convictions. See

Hanner, 32 F.4th at 434–35.

Based on the foregoing, as to all issues presented,

the district court is

AFFIRMED.

19a

APPENDIX B

_________

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

_________

UNITED STATES OF AMERICA,

Plaintiff,

vs.

COREY DEYON DUFFEY,

Defendant.

_________

3:08-CR-00167-B-1

_________

RESENTENCING HEARING

BEFORE THE HONORABLE JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

MARCH 2, 2022

_________

APPEARANCES

For the Government:

UNITED STATES ATTORNEY’S OFFICE

1100 Commerce Street - 3rd Floor

Dallas, TX 75242

214/659-8600

20a

BY: AMY J. MITCHELL

GARY TROMBLAY

For the Defendant:

HUNTER, LANE & JAMPALA

310 S St Mary’s St - Suite 1740

San Antonio, TX 78205

210/202-1076

BY: JOHN TORREY HUNTER

VIVEK JAMPALA

and

FLANARY LAW FIRM, PLLC

One International Center

100 NE Loop 410 - Suite 650

San Antonio, TX 78216

210/738-8383

BY: DONALD HERBERT FLANARY, III

COURT REPORTER: SHAWNIE ARCHULETA,

TX CCR No. 7533

1100 Commerce Street

Dallas, Texas 75242

Proceedings reported by mechanical stenography,

transcript produced by computer.

_________

(In open court at 10:00 a.m.)

THE COURT: Good morning. This is Case Number

3:08-CR-167. Seen you many times before. We’ve got

a sentencing in United States v. Corey Deyon Duffey.

We’re going do a re-sentencing today.

Who is here for the Government?

21a

MS. MITCHELL: Amy Mitchell.

THE COURT: Take your mask off, please.

MS. MITCHELL: Amy Mitchell and Gary Tromblay

for the Government.

THE COURT: Mr. Tromblay, you are back.

MR. TROMBLAY: I am back.

THE COURT: Ms. Mitchell, nice to see you. Haven’t

seen you for a while.

And for the defense?

MR. JAMPALA: Your Honor -THE COURT: Stand up, please.

MR. JAMPALA: Your Honor, my name is Vivek

Jampala. And this is -THE COURT: No, no. Last name?

MR. JAMPALA: Jampala.

THE COURT: Spell it for me.

MR. JAMPALA: J-A-M-P-A-L-A.

THE COURT: I’ve got to get that right. Jampala.

Okay.

MR. JAMPALA: And this is Mr. John Hunter.

MR. HUNTER: Good morning, Your Honor. John

Hunter for Mr. Duffey.

THE COURT: Speak into the microphone, and take

your mask off, please.

MR. HUNTER: Good morning, Your Honor. John

Hunter for Mr. Duffey.

THE COURT: Mr. Jumpala and Mr. Hunter, and

Mr. Duffey is here.

THE DEFENDANT: Yes, ma’am.

22a

MR. FLANARY: And Don Flanary, Your Honor.

THE COURT: Don what?

MR. FLANARY: Flanary.

THE COURT: Flanary. Okay. We have -- this is a

big team of a defense.

[End of relevant section of transcript.]

MR. JAMPALA: Regarding the First Step Act, it’s

our contention that this is an issue of what constitutes

a valid sentence, and when Congress passed the First

Step Act, what they intended as far as its retroactivity

was regarding valid sentences and not merely any

sentence.

The Government does cite to United States v. Gomez

from the 5th Circuit 2020. And we think that that is

not completely on point, because it does very much

hinge upon the idea of when a sentence is imposed.

It’s not our contention that there’s some temporal

aspect of the sentencing that makes it -THE COURT: What -- what do you mean by that?

MR. JAMPALA: That there is something wrong with

the dates or that his original sentences happened

prior. Our contention is that those are not valid

sentences at all, and therefore should not be

considered.

THE COURT: Now, do you have any cases right on

point?

MR. JAMPALA: Not from the 5th Circuit, Your

Honor. But the case cited by the Government, United

States v. Jackson, does compare and contrast their

reasoning with the 4th Circuit’s reasoning. Both of

these are from the 6th and 4th --

23a

THE COURT: Tell me about those cases.

MR. JAMPALA: Sure.

Jackson, the -- it is from the 6th Circuit Court of

Appeals, and it was just decided in April of this year - sorry, of last year, excuse me.

And the Court decided that the exact language -excuse me, let me pull it up -- of the First Step Act, I

believe it’s 403(b), Applicability to Pending Cases.

And it states: “This section and the amendments

made by this section shall apply to any offenses 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.”

And it was enacted December 21st of 2018.

And, essentially, we are basically fighting over a

term. If a sentence for the offense has not been

imposed. And like I said, the word “imposed” is not

really in question, it’s really a question of what does

“a sentence” mean?

And regarding this, Jackson basically says that “a

sentence” means at the date of December 21st, the

date of enactment, does the defendant have a

sentence?

And they go through and they do cite Black’s Law

Dictionary and The Chicago Manual of Style to -- or to

reiterate that the tense of the verb should apply. And

this is them quoting from Chicago Manual of Style.

THE COURT: Slow down. Slow down, because you

read faster than you talk.

MR. JAMPALA: I’m a nervous reader, Your Honor.

THE COURT: I am, too. I talk fast.

24a

MR. JAMPALA: This is from Jackson. And I think

this is roughly the holding in their -THE COURT: What circuit was that? Fourth?

MR. JAMPALA: Sixth.

“In arguing to the contrary, Jackson contends that

there was -- that when his sentence was vacated ‘his

sentence was rescinded, and there was no longer a

sentence imposed upon him until he was resentenced.’

That argument misconstrues the First Step Act’s

retroactivity inquiry. That Jackson was without a

sentence for three months in 2019 does not change the

fact that as of December 21, 2018, a sentence had been

imposed upon him. After all, vacatur does not erase

Jackson’s prior sentence from history. Vacatur merely

‘makes void’ the thing vacated.”

And they cite the definition of “Vacate” from Black’s

Law Dictionary.

“When that thing becomes void, it is ‘of no legal

effect’ anymore.”

And they cite the definition of “Void” from Black’s

Law Dictionary.

“But eliminating a sentence’s prospective legal effect

only ‘wipes the slate clean’ looking forward.” Citing to

Pepper v. United States from United States Supreme

Court -THE COURT: Slow down. Pepper v. United States.

MR. JAMPALA: Yes, and I will give the full citation,

I apologize.

THE COURT: That’s okay.

MR. JAMPALA: 562 U.S. 476 at page 507, and that’s

from 2011.

25a

THE COURT: In that case, did they apply the First

Step Act in the manner that you are requesting?

MR. JAMPALA: In Pepper or -THE COURT: In either one.

MR. JAMPALA: In Jackson, no. But right below that

they discuss -- they -- which is their sister court’s -4th Circuit -- decision that goes the other way.

THE COURT: Tell me about that.

Tell me about the only decision you have that goes

this way.

MR. JAMPALA: Well, let me -- I apologize.

THE COURT: That’s okay. Take your time.

I appreciate -- you know, I appreciate the time.

MR. JAMPALA: Regarding the “they,” I am -- I don’t

think I have a report citation, but it’s United States v.

Bethea, Number 19-4618 at page 11. This is from the

Fourth -THE COURT: What circuit was that?

MR. JAMPALA: Fourth Circuit 2021.

THE COURT: And did they apply the First Step Act

in the manner you’re suggesting?

MR. JAMPALA: Yes, they did.

THE COURT: So tell me about that case. Tell me

what the facts were.

MR. JAMPALA: Let me . . . this was not necessarily

a 924(c) issue. It was regarding the First Step Act’s

Amendment to 841. But they do discuss vacatur,

specifically in the context of having a 2255, I believe.

And I’ll just quote what I believe is the proper

section here.

26a

“In this case, the district court’s vacatur and reentry

of judgment nullified Bethea’s original sentence such

that a sentence cannot legally -- cannot legally be said

to have been imposed until 2019. As this Court

explained in United States v. Hadden, 2255

contemplates specific types of remedies in a criminal

judgment -- if a criminal judgment is infirm.”

And the citation is 475 F.3d 652 at 667 to 668 in

2007.

Quoting from that: “The end result --”

THE COURT: Slow down.

MR. JAMPALA: Sorry.

“‘The end result of a successful 2255 proceeding

must be the vacatur’ of a sentence followed by a

remedy (1) granting release; (2) granting a new trial,

or (3) granting a ‘new sentence, be it imposed by (a) a

resentencing or (b) a corrected sentence.’”

“A corrected sentence ‘is an entirely new sentence,’

which permits a direct appeal from its imposition as

part of the individual’s original, criminal case.”

And they cite back to the same case at 664.

“And a ‘new’ sentence is imposed by correction even

if that correction merely changes the date to permit

appeal.”

And they go on to explain their reasoning a little bit

more.

THE COURT: No, that’s okay. That’s okay. All right.

Just tell me else you have besides those cases.

MR. JAMPALA: Those are the, I -- I think the two

most developed cases on the issue that directly talk

about the types of, I guess, interpretation as regarding

retroactivity and the question of what constitutes a

27a

sentence, whether it is merely a valid sentence or any

sentence that is a historical fact.

I think that the 4th Circuit is correct on this,

because it is often the case in a courtroom, especially

in a criminal context, that we do not deal necessarily

with historical facts. We deal with legal facts.

I think the 4th Amendment jurisprudence is the

exclusionary rules are completely based on this. We

do not use facts that, even though they may be true

and historically true, but they maybe run afoul of the

law and we toss those facts out. And we have a legal

fact that this individual did not find -- the officer did

not find any contraband or a confession was not found

to be lawfully received from the defendant, and,

therefore, there was no confession at all.

And this also happens in the context of being able to

deny an arrest happened. It happens after expunction.

It happens -- I’m unsure about this, but I believe a

presidential pardon has certain effects of altering

historical facts and having the legal fact be different.

THE COURT: Okay. Anything else?

MR. JAMPALA: I will say the use of the words of the

First Step Act, I do believe, are important.

Convictions and sentences are overturned all the

time, and they can be overturned on direct appeal or

by writ.

And Congress, if they did want to have a firm date

anchored to historical facts, could have used the

factual basis as the anchoring date, which they chose

not to do. They could have used the date of the

indictment, which was served as a basis of conviction

to also serve as a date, the date that the indictment

28a

came down, which is also fixed. And barring a motion

to quash at the (inaudible) level, stays in place.

As opposed to doing that, they chose the word, “a

sentence.” And sentences -- the date of that sentence

and resentencing, as you know, we are here for the

third time historically, first time legally.

THE COURT: Well, the first time wasn’t my fault.

The second time I don’t think was my fault. I don’t

know. I just think the law has changed.

Okay. Anything else?

MR. JAMPALA: Regarding this issue, I will say,

Your Honor, I believe Jackson is actually pending cert

in the Supreme Court. I think by this Friday, they

should have a decision as to whether or not they want

to pick that up. But either way, I do think there is a

circuit split, if not a developing circuit split.

I do want to make the Court aware that I believe the

“they” is unpublished, but it is treated with -- well, the

opinion, itself, has a great deal of analysis. And the

6th Circuit seems to treat it with the intellectual

rigor, which I believe it deserves.

THE COURT: Thank you, Mr. Jampala.

I would like to hear from Ms. Mitchell.

Be sure to talk into the mic.

MS. MITCHELL: The first thing I would like to say

is, I would confirm that Bethea is an unpublished

decision. It was a -THE COURT: What decision was that?

MS. MITCHELL: Bethea.

THE COURT: Okay. And where was that out of?

MS. MITCHELL: That is the 4th Circuit.

29a

It is unpublished, and it is a two-one decision. And

the dissent on that case actually falls on the side of

the Jackson case.

And also Jackson, last time I checked, it was also -I believe it is also pending cert. Perhaps it is a

developing circuit split, but it is not one yet, because

there’s no published decision out of the 4th Circuit

that goes the other way.

It -- because it’s unpublished. As to the underlying

argument, the 5th Circuit has drawn the same line as

the 11th Circuit and the 6th Circuit, and that line is

the date of enactment.

THE COURT: What do you mean the date of

enactment?

MS. MITCHELL: The date of enactment for the

amendment. I’m sorry.

THE COURT: Okay.

MS. MITCHELL: So the First Step Act Amendment

went into effect December 21st, 2018. And as of that

date, Mr. Duffey was serving a valid sentence. This

Court’s sentence was imposed first in 2010, and the

second resentencing was in 2012.

He was serving that sentence on the day of

enactment. And that is the date that the 5th Circuit

looked at in Gomez. That’s the date that the 6th

Circuit looked at in Jackson. It’s the date that the

11th Circuit looked at in Smith. Which the Smith case

is the one I referenced in my response to the

defendant’s objections.

So it’s the Government’s position that the best

reading of the statutory -- or the amendment’s

language, itself, is that, was there a valid sentence on

30a

the date of enactment, and if there was, the

amendment does not apply. So it’s our position that

the subsequent 924(c)’s should continue to be 25

years.

THE COURT: Okay. Thank you very much, Ms.

Mitchell.

MS. MITCHELL: Thank you.

THE COURT: Okay. I think I have heard enough

about this, unless you have something else, Mr.

Jampala, but I would like to rule. Mr. Jampala, are

you ready?

MR. JAMPALA: Ready, Your Honor.

THE COURT: You know, I think you make an

interesting argument. And if this becomes a circuit

split, we will deal with it at that time. But I don’t

think it is a circuit split, and I am very convinced that

the date of enactment out of the 5th Circuit and the

11th Circuit are the correct dates.

I don’t see how someone can’t be serving a sentence

when they are serving a sentence. And I think that

Probation dealt with this very well in the fourth

addendum. And, you know, you can read into it what

you like, but I -- on page 2 of the presentence report,

they give a nice analysis.

The First Step Act was enacted on December 21st,

2018, as Ms. Mitchell has pointed out, at which time

the defendant was serving a sentence of

imprisonment imposed by the Court. Therefore, the

amendment to 924(c) is not retroactive to this case.

And as such, the mandatory minimum sentences for

27, 31, 35 and 39 is 25 years or 300 months.

31a

So I also think the Government’s response has some

good language in there, and I adopt it, and I’m going

to overrule the objection.

[End of relevant section of transcript.]

THE COURT: Thank you very much.

Mr. Duffey, do you want to come up with one of your

lawyers? Both of your lawyers? Yeah.

Mr. Duffey, I can see that your demeanor, even if I’m

not looking at your words, your demeanor is much

better. You’ve grown substantially in prison. And all

these letters that I got, my gosh, I just -- you know, I

can’t overlook them.

And so I know you are a better person. I know you

affected two prisoners’ lives, if not more. I know that

you had tons of support.

Do you have any family out here today?

THE DEFENDANT: Yes, Your Honor, I do.

THE COURT: Who is it?

Just stand.

Thank you-all very much for coming. Wow. Thank

you-all very, very much for coming. I really appreciate

it. You can be seated.

Okay. But, I mean, it doesn’t get past the facts of the

case. I mean, these were several violent bank

robberies, takeover bank robberies with body armor,

tasers, guns, all sorts of guns, leaping over the

counters, hitting and tasing bank tellers who will

never be the same because of it.

I mean, I think all the facts that I have already cited

to in my previous sentencings and those facts, all

combined to -- you know, the 3553 factors, number

32a

one, here is deterrence. And I just -- I can’t have them.

I just can’t allow someone who committed that many

bank robberies to get out early. I will -- I will -- I will

seriously -- it’s going to be a shorter sentence, but it’s

not going to be what you want.

There’s the -- there’s the nature and characteristics

of the defendant. I know you’re great now, but you

weren’t then. And -- and just the safety of the

community.

So all of those reasons, I think, and all of the 3553

factors combined to call for the following sentence:

On Counts 1, 14, 15, 16, 20, 24, 28, 32 and 36, 60

months in custody -- a total of 60 months in custody.

For Count 5, 120 months in custody to run

concurrently with the 60 months.

And then we’re going to Counts 22, 26, 30, 34 and

38. That’s 300 months to run concurrently with all the

previous counts.

Then on Count 23, 60 months. But this one is going

to run consecutively to the other sentences imposed.

And Count 27, 31, 35 and 39, 300 months to run

consecutively, for a total of 1,200 months in custody.

It’s not the 3,200 months. It’s not the 4,800 months.

It’s 1,200 months in custody.

And I would give this sentence regardless of the fivelevel, two-level enhancements, any of the

enhancements that applied in this case, I would give

this sentence regardless of it.

In addition, on all of the counts, you have five-year

term of supervised release to run concurrently. That’s

on all the counts.

[End of relevant section of transcript.]

33a

APPENDIX C

_________

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

_________

UNITED STATES OF AMERICA

COREY DEYON DUFFEY

_________

JUDGMENT ON RESENTENCING IN A

CRIMINAL CASE

_________

Case Number: 3:08-CR-00167-B(1)

USM Number: 37465-177

John Torrey Hunter

Defendant’s Attorney

_________

THE DEFENDANT:

 pleaded guilty to

count(s)

 pleaded guilty to

count(s) before a U.S.

Magistrate

Judge,

which was accepted by

the court(s).

34a



pleaded

nolo

contendere to count(s)

which was accepted by

the court

 was found guilty on Counts 1, 5, 14, 15, 16,

count(s) after a plea of 20, 22, 23, 24, 26, 27, 28,

not guilty

30, 31, 32, 34, 38, 39 of

the

superseding

Indictment

filed

November 19, 2008

The defendant is adjudicated guilty of these

offenses:

Title & Section/

Nature of Offense

Offense

Ended

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

June 2, 2008

18 U.S.C. §§ 922(g)(1) &

924(a)(2) Felon in

Possession of a Firearm

June 2, 2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

May 2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

May 2008

Count

35a

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

May 16, 2008

The defendant is sentenced as provided in pages 2

through 8 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

 The defendant has been found not guilty on

count(s)

 Counts 3, 4, 18, and 19 vacated by the Fifth

Circuit on January 3, 2012, and Counts 2, 17, 21, 25,

29, 33, and 37 vacated by the June 14, 2021 Agreed

Order granting Defendant’s motion to vacate, set

aside, or correct sentence under 28 U.S.C. § 2255.

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States attorney of

material changes in economic circumstances.

March 2, 2022

Date of Imposition of Judgment

Jane J. Boyle

Signature of Judge

36a

JANE J. BOYLE,

DISTRICT JUDGE

Name and Title of Judge

March 14, 2022

Date

UNITED

STATES

37a

ADDITIONAL COUNTS OF CONVICTION

Title & Section/

Nature of Offense

Offense

Ended

Count

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

April 24,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

April 24,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

April 24,

2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

March 28,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

March 28,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

March 28,

2008

38a

Firearm in Furtherance

of a Crime of Violence

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

March 28,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

March 28,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

March 28,

2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

February 1,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

February 1,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

February 1,

2008

39a

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

January 28,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

January 28,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

January 28,

2008

40a

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned

for a total term of: 1,560 MONTHS. This term

consists of 60 months on each of Counts 1, 14, 15, 16,

20, 24, 28, 32, and 36; 120 months on Count 5; and 300

months on each of Counts 22, 26, 30, 34, and 38. All

counts listed above are to run concurrently with one

another. Furthermore, the defendant is hereby

committed to the custody of the Federal Bureau of

Prisons for a period 60 months on Count 23; and 300

months on each of Counts 27, 31, 35, and 39, to run

consecutive to each other, and to any other sentence

imposed, for a total aggregate term of imprisonment

of 1,560 months.

☐ The

court

makes

the

following

recommendations to the Bureau of Prisons:

☒ The defendant is remanded to the custody of

the United States Marshal.

☐ The defendant shall surrender to the United

States Marshal for this district:

☐ at

☐ a.m.

☐ p.m. on

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of

sentence at the institution designated by the Bureau

of Prisons:

☐

before 2 p.m. on

☐

as notified by the United States Marshal.

☐

as notified by the Probation or Pretrial

Services Office.

41a

RETURN

I have executed this judgment as follows:

Defendant delivered on

with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

42a

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of: FIVE (5)

YEARS. This term consists of 3 years on each of

Counts 1, 5, 14, 15, 16, 20, 24, 28, 32, and 36; and

5 years on each of Counts 22, 23, 26, 27, 30, 31, 34,

35, 38, and 39, to run concurrently with one

another.

MANDATORY CONDITIONS

1. You must not commit another federal, state or

local crime.

2. You must not unlawfully possess a controlled

substance.

3. You must refrain from any unlawful use of a

controlled substance. You must submit to one drug

test within 15 days of release from imprisonment and

at least two periodic drug tests thereafter, as

determined by the court.

 The above drug testing condition is suspended,

based on the court’s determination that you pose a

low risk of future substance abuse. (check if

applicable)

4.  You must make restitution in accordance with

18 U.S.C. §§ 3663 and 3663A or any other statute

authorizing a sentence of restitution. (check if

applicable)

5.  You must cooperate in the collection of DNA as

directed by the probation officer. (check if applicable)

6.  You must comply with the requirements of the

Sex Offender Registration and Notification Act (34

U.S.C. § 20901, et seq.) as directed by the probation

43a

officer, the Bureau of Prisons, or any state sex

offender registration agency in the location where you

reside, work, are a student, or were convicted of a

qualifying offense. (check if applicable)

7.  You must participate in an approved program

for domestic violence. (check if applicable)

You must comply with the standard conditions that

have been adopted by this court as well as with any

other conditions on the attached page.

44a

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply

with the following standard conditions of supervision.

These conditions are imposed because they establish

the basic expectations for your behavior while on

supervision and identify the minimum tools needed by

probation officers to keep informed, report to the court

about, and bring about improvements in your conduct

and condition.

1. You must report to the probation office in the

federal judicial district where you are authorized to

reside within 72 hours of your release from

imprisonment, unless the probation officer instructs

you to report to a different probation office or within a

different time frame.

2. After initially reporting to the probation office,

you will receive instructions from the court or the

probation officer about how and when you must report

to the probation officer, and you must report to the

probation officer as instructed.

3. You must not knowingly leave the federal judicial

district where you are authorized to reside without

first getting permission from the court or the

probation officer.

4. You must answer truthfully the questions asked

by your probation officer.

5. You must live at a place approved by the

probation officer. If you plan to change where you live

or anything about your living arrangements (such as

the people you live with), you must notify the

probation officer at least 10 days before the change. If

notifying the probation officer in advance is not

possible due to unanticipated circumstances, you

45a

must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

6. You must allow the probation officer to visit you

at any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision that

he or she observes in plain view.

7. You must work full time (at least 30 hours per

week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If you do

not have full-time employment you must try to find

full-time employment, unless the probation officer

excuses you from doing so. If you plan to change where

you work or anything about your work (such as your

position or your job responsibilities), you must notify

the probation officer at least 10 days before the

change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated

circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or

expected change.

8. You must not communicate or interact with

someone you know is engaged in criminal activity. If

you know someone has been convicted of a felony, you

must not knowingly communicate or interact with

that person without first getting the permission of the

probation officer.

9. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

10. You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was designed,

46a

or was modified for, the specific purpose of causing

bodily injury or death to another person such as

nunchakus or tasers).

11. You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting the

permission of the court.

12. If the probation officer determines that you pose

a risk to another person (including an organization),

the probation officer may require you to notify the

person about the risk and you must comply with that

instruction. The probation officer may contact the

person and confirm that you have notified the person

about the risk.

13. You must follow the instructions of the probation

officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the

conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. I understand additional information

regarding these conditions is available at

www.txnp.uscourts.gov.

Defendant’s Signature

Date

47a

SPECIAL CONDITIONS OF SUPERVISION

Pursuant to the Mandatory Victims Restitution Act

of 1996, the defendant is ordered to pay restitution in

the amount of $355,976 (joint and several with his codefendants as set forth on page 7), payable to the U.S.

District Clerk, 1100 Commerce Street, Room 1452,

Dallas, Texas 75242. Restitution shall be payable

immediately and any unpaid balance shall be payable

during incarceration. Restitution shall be disbursed

to:

Bank of America

Attention: Security Director

Acct Ref: Bank robbery on April 24, 2008

$85,000.00

State Bank of Texas

Attention: Security Director

Acct Ref: Bank robbery on March 28, 2008

$14,000

Comerica Bank

Attention: Security Director

Acct Ref: Bank robbery on February 1, 2008

$246,000

Citi Bank

Attention: Security Director

Acct Ref: Bank robbery on January 28, 2008

$5,000

Century Bank

Attention: Security Director

Acct Ref: Bank robbery on March 28, 2008

$5,976

If upon commencement of the term of supervised

release any part of the restitution remains unpaid, the

defendant shall make payments on such unpaid

48a

balance in monthly installments of not less than 10

percent of the defendant's gross monthly income, or at

a rate of not less than $50 per month, whichever is

greater. Payment shall begin no later than 60 days

after the defendant's release from confinement and

shall continue each month thereafter until the

balance is paid in full. In addition, at least 50 percent

of the receipts received from gifts, tax returns,

inheritances, bonuses, lawsuit awards, and any other

receipt of money shall be paid toward the unpaid

balance within 15 days of receipt. This payment plan

shall not affect the ability of the United States to

immediately collect payment in full through

garnishment, the Treasury Offset Program, the

Inmate Financial Responsibility Program, the

Federal Debt Collection Procedures Act of 1990 or any

other means available under federal or state law.

Furthermore, it is ordered that interest on the unpaid

balance is waived pursuant to 18 U.S.C. § 3612(f)(3).

You must provide the probation officer with access

to any requested financial information and authorize

the release of any financial information. The

probation office may share financial information with

the U.S. Attorney’s Office.

The defendant shall pay any remaining balance of

restitution in the amount of $355,976, as set out in

this Judgment.

49a

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the Schedule of Payments page.

TOTALS

Assessment

Restitution

$2,000.00

$355,976.00

Fine

AVAA

Assessment*

JVTA

Assessment**

$.00

 The determination of restitution is deferred until

An Amended Judgment in a Criminal

Case (AO 245C) will be entered after such

determination.

 The defendant shall make restitution (including

community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below. However,

* Amy, Vicky, and Andy Child Pornography Victim Assistance

Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No.

114-22.

*** Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23,

1996.

50a

pursuant to 18 U.S.C. § 3664(i), all nonfederal victims

must he paid before the United States is paid.

$85,000.00, joint and several with co-defendants

Tony Hewitt(2), Jarvis Ross (3), Darobie Stenline (4),

Charles Runnels (5), Antonyo Reece (6), and Yolanda

McDow (7), to:

Bank of America

Acct Ref: Bank robbery on April 24, 2008

$14,000, joint and several with co-defendants Tony

Hewitt(2), Jarvis Ross (3), Darobie Stenline (4), and

Charles Runnels (5), to:

State Bank of Texas

Acct Ref: Bank robbery on March 28, 2008

$246,000, joint and several with co-defendants Tony

Hewitt(2), Jarvis Ross (3), Darobie Stenline (4),

Charles Runnels (5), and Yolanda McDow (7), to:

Comerica Bank

Acct Ref: Bank robbery on February 1, 2008

$5,000, joint and several with co-defendants Tony

Hewitt(2), Jarvis Ross (3), Darobie Stenline (4), and

Charles Runnels (5), to:

Citi Bank

Acct Ref: Bank robbery on January 28, 2008

$5,976, joint and several with co-defendants Tony

Hewitt(2), Jarvis Ross (3), Charles Runnels (5), and

Yolanda McDow (7), to:

Century Bank

Acct Ref: Bank robbery on March 28, 2008

 Restitution amount ordered pursuant to plea

agreement $

51a

 The defendant must pay interest on restitution

and a fine of more than $2,500, unless the restitution

or fine is paid in full before the fifteenth day after the

date of the judgment, pursuant to 18 U.S.C. § 3612(f).

All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to

18 U.S.C. § 3612(g).

 The court determined that the defendant does not

have the ability to pay interest, and it is ordered that:

 the interest requirement is waived for  fine 

restitution

 the interest requirement for the

restitution is modified as follows:

 fine



52a

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties

shall be due as follows:

A  Lump sum payment of $ 355,976 due

immediately, balance due

 not later than

, or

 in accordance with  C,  D,  E, or  F below;

B  Payment to begin immediately (may be

combined with  C,  D, or  F below); or

C  Payment in equal

(e.g.,

weekly,

monthly, quarterly) installments of $

over a

period of

(e.g., months or years), to

commence

(e.g., 30 or 60 days) after the date

of this judgment; or

D  Payment in equal monthly (e.g., weekly,

monthly, quarterly) installments not less than 10

percent of the defendant's gross monthly income, or at

a rate of not less than $50 per month, whichever is

greater, until the balance is paid in full, to commence

60 days (e.g., 30 or 60 days) after release from

imprisonment to a term of supervision; or

E  Payment during the term of supervised release

will commence within

(e.g., 30 or 60 days)

after release from imprisonment. The court will set

the payment plan based on an assessment of the

defendant’s ability to pay at that time; or

F  Special instructions regarding the payment of

criminal monetary penalties:

It is ordered that the Defendant shall pay to

the United States a special assessment of

53a

$2,000.00 for Counts 1, 5, 14, 15, 16, 20, 22, 23, 24,

26, 27, 28, 30, 31, 32, 34, 35, 36, 38, and 39, which

shall be due immediately. Said special

assessment shall be paid to the Clerk, U.S.

District Court.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during the period

of imprisonment. All criminal monetary penalties,

except those payments made through the Federal

Bureau of Prisons’ Inmate Financial Responsibility

Program, are made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

 Joint and Several

See above for Defendant and Co-Defendant

Names and Case Numbers (including

defendant number), Total Amount, Joint and

Several Amount, and corresponding payee, if

appropriate.

As set forth on page 7.

 The defendant shall pay the cost of prosecution.

 The defendant shall pay the following court

cost(s):

 The defendant shall forfeit the defendant’s

interest in the following property to the United States:

54a

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) AVAA assessment, (5) fine principal, (6)

fine interest, (7) community restitution, (8) JVTA

assessment, (9) penalties, and (10) costs, including

cost of prosecution and court costs.

55a

APPENDIX D

_________

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

_________

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JARVIS DUPREE ROSS,

Defendant.

_________

3:08-CR-00167-B-3

_________

RESENTENCING HEARING

BEFORE THE HONORABLE JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

MARCH 24, 2022

_________

APPEARANCES

For the Government:

UNITED STATES ATTORNEY’S OFFICE

1100 Commerce Street - 3rd Floor

Dallas, TX 75242

56a

214/659-8600

BY: AMY J. MITCHELL

For the Defendant:

LAW OFFICE OF KEVIN B. ROSS, P.C.

8150 North Central Expressway - Suite M2070

Dallas, TX 75206

214/731-3151

BY: KEVIN B. ROSS

COURT REPORTER: SHAWNIE ARCHULETA,

TX CCR No. 7533

1100 Commerce Street

Dallas, Texas 75242

proceedings reported by mechanical stenography,

transcript produced by computer.

_________

(In open court at 10:00 a.m.)

THE COURT: This is Case 3:08-CR-167, United

States v. Jarvis Dupree Ross.

Who is here for the Government?

MS. MITCHELL: Amy Mitchell for the Government.

THE COURT: And who is here for the defense?

MR. ROSS: Kevin Ross, Your Honor.

[End of relevant section of transcript.]

MR. ROSS: What we tried to do, Your Honor, in the

objections, is focused on the fact that we believe the

First Step Act of 2018 that modified 924(c)’s is

applicable in this case.

Your Honor, in the response to the objections, they

cited U.S. v. Gomez and the Fifth Circuit that talked

57a

about when a sentence is imposed, and ultimately

concluded that the First Step Act of 2018 does not

apply for cases that are on direct appeal.

This case is different and, I think, distinguishable

from Gomez in this sense.

Mr. Gomez, which happened to be my case before the

5th Circuit -THE COURT: That’s funny.

MR. ROSS: -- had a sentence that already had been

imposed just right before the First Step Act went into

effect. The case went all the way up in oral argument.

The difference in that was that there was a sentence

imposed at the time. And the argument more so was

that it wasn’t a final sentence, it was pending on

appeal and things of that nature.

The difference in this case is that this is a 2255 -which was granted -- in which the Court has vacated,

set aside his sentence. So as he stands here today, he

is not under a sentence.

And so, in effect, as some of the cases that we cited,

that when there is a vacatur or setting aside of a

sentence, then that sentence becomes a nullity, a legal

nullity. And so to go back and to say that though a

sentence was imposed prior to, but, yet, now looking

at it, there’s not a sentence, because that sentence has

been vacated, wherein he gets a clean slate. And the

Court now in resentencing him is starting afresh.

It’s more so -- what adds to this, Your Honor, is the

fact that this is not a limited type of sentencing. This

is a general resentencing in which the Court has

complete discretion in resentencing on all counts on

the whole case.

58a

So the argument, Your Honor, is the fact that, as he

stands here today, if a person were to stand before the

Court in the same situation with a 924(c) conviction,

the Court would have to follow the First Step Act and

could not apply in that case.

And so here, Mr. Ross stands in the same situation

as far as a resentencing goes in which he’s not under

a sentence.

Your Honor, this is a huge swing. There’s 1,200

months if he gets sentenced without the First Step

Act. 240 months if he gets sentenced and the First

Step Act does apply. That’s a 960-month swing. That’s

a 80-year swing.

And I think it’s clear from the -- what Congress was

seeking to do in implementing the First Step Act and

passing the First Step Act is for defendants who were

in this situation would not be under the overbearing

lengthy sentences that were being imposed.

THE COURT: Do you have any cases that are on

point?

MR. ROSS: Your Honor, I think right now, as far as

cases, Bethea is a case in which the 4th Circuit

discussed the fact that on a 2255 for a remand for

resentencing that they would apply the First Step Act.

I think right now there is a circuit split.

THE COURT: Yes, there is.

MR. ROSS: It’s really kind of undecided and really

based upon when a sentence is deemed to be imposed

in a case.

Exhibit A that I had filed with my PSR objections

was an amicus brief on behalf of three of the

sentencers who helped draft the First Step Act,

59a

Senator Grassley, Senator Durbin, and Senator

Booker.

Your Honor, I think that this amicus brief, which

was in another case, it didn’t reach the merits because

the defendant was released on passion or never really

got to the point of making this decision.

But clearly in this brief filed on behalf of the

senators, who drafted it, discusses Section 401(c), but

the language is exactly the same in the 924(c) section

in the case.

Your Honor, I think -- and 403(b) -- it clearly shows

Congress’s intent.

THE COURT: I mean, it says, “The text of Section

401 reflects the settled principle that vacatur nullifies

the sentence in its entirety,” on Page 10.

MR. ROSS: That’s correct, Your Honor.

And in Footnote 3, where it talks about Section 403

of this act, which is not an issue in this appeal, but it

is in our case, contains the identical applicability

provision. And that the Court’s interpretation of

Section 401(c) most likely -THE COURT: Slow down.

MR. ROSS: And that the Court’s interpretation of

401(c) will most likely inform any future

interpretation of 403(b), and that’s why we are here

today.

THE COURT: Okay.

MR. ROSS: Your Honor, I think that it is not a far

legal stretch. Actually, I think it’s -- it’s on point, that

just from -- from a legal perspective under the law,

that if a sentence has been vacated and becomes a

legal nullity, it is as if that sentence is no -- it is. That

60a

sentence is no longer in effect. So then, to go back and

say a sentence that was imposed that is void and try

to give legal effect to it based on the statute, I don’t

think that’s how anyone looks -- should look at the law

or what -- what the intent of Congress was when it

passed this law.

So, Your Honor, in a nutshell, getting to the point,

because there is -- because the sentence -- earlier

sentence was nullified, it was vacated, set aside,

therefore there is not a sentence that was imposed

legally.

And as Mr. Ross stands here today to be re -- to be

sentenced, it is as if he is being sentenced for the first

time.

THE COURT: Is the case in the 4th Circuit also a

403 case?

MR. ROSS: I believe it is, Your Honor.

THE COURT: All right. Okay. I would like to hear

from Ms. -- I’m sorry, Ms. Mitchell.

MS. MITCHELL: They don’t let me out of my office

very often these days.

THE COURT: They don’t, but we’re seeing you more

and more and that’s good.

MS. MITCHELL: I think the important thing here - and it’s this one that’s working better.

THE COURT: Yeah, I think so.

MS. MITCHELL: -- Congress could have made the

amendments to 924(c) fully retroactive. They could

have said, “This applies to everyone,” or “This applies

to sentences that aren’t final or sentences that are

vacated in the future,” but they didn’t do that. What

they did was limit it very specifically to whether a

61a

sentence for the offense has been imposed as of the

date of enactment, which is December 20th of 2018.

And so in this case, Mr. Ross was serving this

Court’s valid sentence on December 20th, 2018. It was

the sentence the Court imposed in 2012. And based on

the plain language of the amendment, itself, taken

together with the cases that have begun to interpret

it. Gomez is the only 5th Circuit case.

THE COURT: I have Jackson out of the 6th Circuit.

MS. MITCHELL: Yes, Jackson out of the 5th Circuit

and Smith out of the 11th. There are actually several

cases out of the 6th Circuit. And all of those really

focus on was there a valid sentence on the date of

enactment.

And in some of those cases, a sentence was vacated

just before, but they hadn’t been resentenced yet. And

so on December 20th, 2018, they did have a sentence.

And in those cases, the 6th Circuit applied the

amendments.

But in the cases where there was a sentence on that

particular date, the amendments did not apply. And

it’s the Government’s position that that is the better

reading of the language of the amendment and that

Mr. Ross should be subject to 25 years on those

subsequents.

THE COURT: So how would Mr. Ross not be subject

to what you are talking about here?

MS. MITCHELL: If the Court had vacated his

sentence on December 19th of 2018 and potentially he

would not have been subject -- he would have been

eligible for the First Step Act.

THE COURT: And how could I have done that?

62a

MS. MITCHELL: You couldn’t have in this case,

because there was no -THE COURT: Right.

MS. MITCHELL: I don’t remember exactly what day

this came out.

THE COURT: Yeah, it came out in 2019 or

something, right?

MS. MITCHELL: Correct.

THE COURT: Yeah, 2020.

MS. MITCHELL: Yeah. The decision that actually,

you know, caused the vacatur of his, you know,

unconstitutional 924(c)’s that were tied to conspiracy,

bank robbery, that occurred later on.

THE COURT: Yes. Okay. Thank you.

MS. MITCHELL: Thank you.

THE COURT: Mr. Ross, I like this argument. I

appreciate this. And this is probably the third or

fourth time I’ve heard it, but I -- I think I’m going to

go with the Government.

We will see what the 5th Circuit says, because I’m

sure you will appeal this, and see if they can tell us

whether 403 is subject to the First Step Act or not. I

don’t think it is based on what I’ve seen out of the 6th

Circuit, but we’ll see. All right? So I’m going to

overrule your objection.

[End of relevant section of transcript.]

THE COURT: All right. Mr. Ross, you know, the

case is horrible, you know. I don’t have to repeat all

the facts, but it was an armed robbery, several armed

robberies, takeover robberies, where people were

terrorized. You had body armor. You had stun guns.

63a

You had weapons. You had all sorts of stuff, you know,

maps and stuff. And it was jumping over the counters

and hitting people with a gun and stunning people

with a gun. And some of those people will never get

over that.

And it was -- it was kind of a fun case, actually,

because I couldn’t believe what I was hearing. But at

the same time, it -- it really did happen, and it was

scary. And I think that we thought that the next thing

you were going to do was hijack someone, because that

seemed to be in the plans, but I’m not considering that

now.

So I’m thinking about all the facts of the case, and

they are overwhelmingly bad. And I also recall, if you

will -- just a minute. Just a minute. I’m looking for his

presentence report.

Oh, here it is.

Yeah, I’m looking at your adult convictions, and they

were possession of marijuana; tampering with

identification numbers; evading arrest; possession of

marijuana; assault on a public servant, and -- you

know, they -- they are sort of violent, there’s some in

there of the violent type.

So, you know, I just don’t have much sympathy for

you. I am going to give you a sentence in line with

what I am supposed to under the law. But the 3553

factors, I think, just beg me to sentence you to a lot of

time, and I’m going to.

So on Counts 1, 14, 15, 16, 20, 24, 28, 36, I’m going

to give you 60 months per count.

On Count 7 and 42, 120 months per count.

On Counts 22, 26, 30, 38, 300 months per count.

64a

And on Count 12, 365 months to run currently to all

previous counts.

And Count 13, 60 months to run consecutively to any

other sentence imposed.

And Counts 23 and 27, 300 months per count to run

consecutively to each other and to any other sentence

imposed for an aggregate sentence of 1,200 months.

And the total sentence imposed is 1,625 months.

Did I announce that correctly?

MR. ROSS: I think there’s just two counts that were

left off at the end. It should be Counts 23, 27, 31 and

39.

THE COURT: Okay. 23, 27, 31 and 39 at 300 months

per count to run consecutively with each other.

Okay. Supervised release is:

On Counts 1, 7, 14, 15, 16, 20, 24, 28, 36 and 42,

three years’ supervised release.

On Counts 12, 13, 22, 23, 26, 27, 30, 31, 38 and 39,

five years to run concurrently with the other sentence

-- with the other supervised release term.

There is a 100-dollar per count special assessment

for a total of $2,000. There’s no fine, and restitution in

the amount of $109,976.

So pursuant to the Sentencing Reform Act of 1984,

it is the judgment of the Court that the defendant,

Jarvis Dupree Ross, is hereby committed to the

custody of the Federal Bureau of Prisons for a period

of 60 months on each of Counts 1, 14, 15, 16, 20, 28

and 36; 120 months on Counts 7, 40 and 42; 300

months on Counts 22, 26, 30, 38; and 365 months on

Count 12. All counts listed above are to run

concurrently with one another.

65a

Furthermore, the defendant is hereby committed to

the custody of the Federal Bureau of Prisons for a

period of 60 months on Count 13 and 300 months on

each of Counts 23, 27, 31 and 39 to run consecutive to

each other and to any other sentence imposed, the

sentence being 1,625 months.

[End of relevant section of transcript.]

66a

APPENDIX E

_________

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

_________

UNITED STATES OF AMERICA

JARVIS DUPREE ROSS

_________

JUDGMENT ON RESENTENCING IN A

CRIMINAL CASE

_________

Case Number: 3:08-CR-00167-B(3)

USM Number: 37467-177

Kevin B Ross

Defendant’s Attorney

_________

THE DEFENDANT:

 pleaded guilty to

count(s)

 pleaded guilty to

count(s) before a U.S.

Magistrate

Judge,

which was accepted by

the court.

67a



pleaded

nolo

contendere to count(s)

which was accepted by

the court

 was found guilty on Counts 1, 7, 12, 13, 14,

count(s) after a plea of 15, 16, 20, 22, 23, 24, 26,

not guilty

27, 28, 30, 31, 36, 38, 39,

and

the

superseding

Indictment

filed

November 19, 2008

The defendant is adjudicated guilty of these

offenses:

Title & Section/

Nature of Offense

Offense

Ended

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

June 2, 2008

18 U.S.C. §§ 922(g)(1) &

924(a)(2) Felon in

Possession of a Firearm

June 2, 2008

18 U.S.C. § 1201(a)(1)

Kidnapping

June 2, 2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

June 2, 2008

Count

68a

Firearm in Furtherance

of a Crime of Violence

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

May 2008

The defendant is sentenced as provided in pages 2

through 8 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

 The defendant has been found not guilty on

count(s)

 Counts 3, 4, 18, and 19 vacated by the Fifth

Circuit on January 3, 2012, and Counts 2, 17, 21, 25,

29, and 37 vacated by the November 2, 2021, Agreed

Order Granting § 2255 Motion (doc. 700.)

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States attorney of

material changes in economic circumstances.

March 24, 2022

Date of Imposition of Judgment

Jane J. Boyle

Signature of Judge

69a

JANE J. BOYLE,

DISTRICT JUDGE

Name and Title of Judge

March 29, 2022

Date

UNITED

STATES

70a

ADDITIONAL COUNTS OF CONVICTION

Title & Section/

Nature of Offense

Offense

Ended

Count

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

May 2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

May 16,

2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

April 24,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

April 24,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

April 24,

2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

March 28,

2008

71a

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

March 28,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

March 28,

2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

March 28,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

March 28,

2008

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

March 28,

2008

18 U.S.C. § 371(18

U.S.C. § 2113(a) & (d))

Conspiracy to Commit

Bank Robbery

January 28,

2008

18 U.S.C. §§ 2113(a) &

(d) & 2 Bank Robbery

and Aiding and Abetting

January 28,

2008

72a

18 U.S.C. §

924(c)(1)(C)(i) Using and

Carrying a Firearm

During and in Relation

to, and Possessing a

Firearm in Furtherance

of a Crime of Violence

January 28,

2008

18 U.S.C. §§ 922(g)(1) &

924(a)(2) Felon in

Possession of a Firearm

April 25,

2008

73a

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned

for a total term of: 1,625 MONTHS. This term

consists of 60 months on each of Counts 1, 14, 15, 16,

20, 24, 28, and 36; 120 months on Counts 7 and 42;

300 months on each of Counts 22, 26, 30, and 38; and

365 months on Count 12. All counts listed above are

to run concurrently with one another. Furthermore,

the defendant is hereby committed to the custody of

the Federal Bureau of Prisons for a period 60 months

on Count 13; and 300 months on each of Counts 23,

27, 31, and 39, to run consecutive to each other, and

to any other sentence imposed for a total aggregate

term of imprisonment of 1,625 months.

☐ The

court

makes

the

following

recommendations to the Bureau of Prisons:

☒ The defendant is remanded to the custody of

the United States Marshal.

☐ The defendant shall surrender to the United

States Marshal for this district:

☐ at

☐ a.m.

☐ p.m. on

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of

sentence at the institution designated by the Bureau

of Prisons:

☐

before 2 p.m. on

☐

as notified by the United States Marshal.

☐

as notified by the Probation or Pretrial

Services Office.

74a

RETURN

I have executed this judgment as follows:

Defendant delivered on

with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

75a

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of: FIVE (5)

YEARS. This term consists of 3 years as to

Counts 1, 7, 14, 15, 16, 20, 24, 28, 36, and 42; and

5 years as to Counts 12, 13, 22, 23, 26, 27, 30, 31,

38, and 39, with all terms to run concurrently.

MANDATORY CONDITIONS

1. You must not commit another federal, state or

local crime.

2. You must not unlawfully possess a controlled

substance.

3. You must refrain from any unlawful use of a

controlled substance. You must submit to one drug

test within 15 days of release from imprisonment and

at least two periodic drug tests thereafter, as

determined by the court.

 The above drug testing condition is suspended,

based on the court’s determination that you pose a

low risk of future substance abuse. (check if

applicable)

4.  You must make restitution in accordance with

18 U.S.C. §§ 3663 and 3663A or any other statute

authorizing a sentence of restitution. (check if

applicable)

5.  You must cooperate in the collection of DNA as

directed by the probation officer. (check if applicable)

6.  You must comply with the requirements of the

Sex Offender Registration and Notification Act (34

U.S.C. § 20901, et seq.) as directed by the probation

officer, the Bureau of Prisons, or any state sex

76a

offender registration agency in the location where you

reside, work, are a student, or were convicted of a

qualifying offense. (check if applicable)

7.  You must participate in an approved program

for domestic violence. (check if applicable)

You must comply with the standard conditions that

have been adopted by this court as well as with any

other conditions on the attached page.

77a

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply

with the following standard conditions of supervision.

These conditions are imposed because they establish

the basic expectations for your behavior while on

supervision and identify the minimum tools needed by

probation officers to keep informed, report to the court

about, and bring about improvements in your conduct

and condition.

1. You must report to the probation office in the

federal judicial district where you are authorized to

reside within 72 hours of your release from

imprisonment, unless the probation officer instructs

you to report to a different probation office or within a

different time frame.

2. After initially reporting to the probation office,

you will receive instructions from the court or the

probation officer about how and when you must report

to the probation officer, and you must report to the

probation officer as instructed.

3. You must not knowingly leave the federal judicial

district where you are authorized to reside without

first getting permission from the court or the

probation officer.

4. You must answer truthfully the questions asked

by your probation officer.

5. You must live at a place approved by the

probation officer. If you plan to change where you live

or anything about your living arrangements (such as

the people you live with), you must notify the

probation officer at least 10 days before the change. If

notifying the probation officer in advance is not

possible due to unanticipated circumstances, you

78a

must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

6. You must allow the probation officer to visit you

at any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision that

he or she observes in plain view.

7. You must work full time (at least 30 hours per

week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If you do

not have full-time employment you must try to find

full-time employment, unless the probation officer

excuses you from doing so. If you plan to change where

you work or anything about your work (such as your

position or your job responsibilities), you must notify

the probation officer at least 10 days before the

change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated

circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or

expected change.

8. You must not communicate or interact with

someone you know is engaged in criminal activity. If

you know someone has been convicted of a felony, you

must not knowingly communicate or interact with

that person without first getting the permission of the

probation officer.

9. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

10. You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was designed,

79a

or was modified for, the specific purpose of causing

bodily injury or death to another person such as

nunchakus or tasers).

11. You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting the

permission of the court.

12. If the probation officer determines that you pose

a risk to another person (including an organization),

the probation officer may require you to notify the

person about the risk and you must comply with that

instruction. The probation officer may contact the

person and confirm that you have notified the person

about the risk.

13. You must follow the instructions of the probation

officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the

conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. I understand additional information

regarding these conditions is available at

www.txnp.uscourts.gov.

Defendant’s Signature

Date

80a

SPECIAL CONDITIONS OF SUPERVISION

Pursuant to the Mandatory Victims Restitution Act

of 1996, the defendant is ordered to pay restitution in

the amount of $109,976, payable to the U.S. District

Clerk, 1100 Commerce Street, Room 1452, Dallas,

Texas 75242. Restitution shall be payable

immediately and any unpaid balance shall be payable

during incarceration. Restitution shall be disbursed

to:

Bank of America

Attention: Security Director

Acct Ref: Bank robbery on 4/24/2008,

$85,000.00

State Bank of Texas

Attention: Security Director

Acct Ref: Bank robbery on March 28, 2008

$14,000

Citi Bank

Attention: Security Director

Acct Ref: Bank robbery on January 28, 2008

$5,000

Century Bank

Attention: Security Director

Acct Ref: Bank robbery on March 28, 2008

$5,976

If upon commencement of the term of supervised

release any part of the restitution remains unpaid, the

defendant shall make payments on such unpaid

balance in monthly installments of not less than 10

percent of the defendant's gross monthly income, or at

a rate of not less than $50 per month, whichever is

greater. Payment shall begin no later than 60 days

after the defendant's release from confinement and

81a

shall continue each month thereafter until the

balance is paid in full. In addition, at least 50 percent

of the receipts received from gifts, tax returns,

inheritances, bonuses, lawsuit awards, and any other

receipt of money shall be paid toward the unpaid

balance within 15 days of receipt. This payment plan

shall not affect the ability of the United States to

immediately collect payment in full through

garnishment, the Treasury Offset Program, the

Inmate Financial Responsibility Program, the

Federal Debt Collection Procedures Act of 1990 or any

other means available under federal or state law.

Furthermore, it is ordered that interest on the unpaid

balance is waived pursuant to 18 U.S.C. § 3612(f)(3).

You must provide the probation officer with access

to any requested financial information and authorize

the release of any financial information. The

probation office may share financial information with

the U.S. Attorney's Office.

The defendant shall pay any remaining balance of

restitution in the amount of $109,976, as set out in

this Judgment.

82a

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the Schedule of Payments page.

TOTALS

Assessment

Restitution

$2,000.00

$109,976.00

Fine

AVAA

Assessment*

JVTA

Assessment**

$.00

 The determination of restitution is deferred until

An Amended Judgment in a Criminal

Case (AO 245C) will be entered after such

determination.

 The defendant shall make restitution (including

community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment. However, pursuant to 18 U.S.C. § 3664(i),

* Amy, Vicky, and Andy Child Pornography Victim Assistance

Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No.

114-22.

*** Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23,

1996.

83a

all nonfederal victims must be paid before the United

States is paid.

Restitution of $109,976.00 to:

$85,000.00, joint and several with co-defendants

Corey Duffey (01), Tony Hewitt (02), Darobie

Stenline (04), Charles Runnels (05), Antonyo Reece

(06), and Yolanda McDow (07), to:

Bank of America

Acct Ref: Bank robbery on April 24, 2008

$5,976, joint and several with co-defendants Corey

Duffey (01), Tony Hewitt (02), Charles Runnels (05),

and Yolanda McDow (07), to:

Century Bank

Acct Ref: Bank robbery on March 28, 2008

$5,000, joint and several with co-defendants Corey

Duffey (01), Tony Hewitt (02), Darobie Stenline (04),

and Charles Runnels (05), to:

Citi Bank

Acct Ref: Bank robbery on January 28, 2008

$14,000, joint and several with co-defendants Corey

Duffey (01), Tony Hewitt (02), Darobie Stenline (04),

and Charles Runnels (05), to:

State Bank of Texas

Acct Ref: Bank robbery on March 28, 2008

 Restitution amount ordered pursuant to plea

agreement $

 The defendant must pay interest on restitution

and a fine of more than $2,500, unless the restitution

or fine is paid in full before the fifteenth day after the

date of the judgment, pursuant to 18 U.S.C. § 3612(f).

All of the payment options on Sheet 6 may be subject

84a

to penalties for delinquency and default, pursuant to

18 U.S.C. § 3612(g).

 The court determined that the defendant does not

have the ability to pay interest, and it is ordered that:

 the interest requirement is waived for  fine 

restitution

 the interest requirement for the

restitution is modified as follows:

 fine



85a

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties

shall be due as follows:

A  Lump sum payment of $ 109,976 due

immediately, balance due

 not later than

, or

 in accordance with  C,  D,  E, or  F below;

B  Payment to begin immediately (may be

combined with  C,  D, or  F below); or

C  Payment in equal

(e.g.,

weekly,

monthly, quarterly) installments of $

over a

period of

(e.g., months or years), to

commence

(e.g., 30 or 60 days) after the date

of this judgment; or

D  Payment in equal monthly (e.g., weekly,

monthly, quarterly) installments not less than 10

percent of the defendant's gross monthly income, or at

a rate of not less than $50 per month, whichever is

greater, until the balance is paid in full, to commence

60 days (e.g., 30 or 60 days) after release from

imprisonment to a term of supervision; or

E  Payment during the term of supervised release

will commence within

(e.g., 30 or 60 days)

after release from imprisonment. The court will set

the payment plan based on an assessment of the

defendant’s ability to pay at that time; or

F  Special instructions regarding the payment of

criminal monetary penalties:

It is ordered that the Defendant shall pay to

the United States a special assessment of

86a

$2,000.00 for Counts 1, 7, 12, 13, 14, 15, 16, 20, 22,

23, 24, 26, 27, 28, 30, 31, 36, 38, 39 and 42, which

shall be due immediately. Said special

assessment shall be paid to the Clerk, U.S.

District Court.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during the period

of imprisonment. All criminal monetary penalties,

except those payments made through the Federal

Bureau of Prisons’ Inmate Financial Responsibility

Program, are made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

 Joint and Several

See above for Defendant and Co-Defendant

Names and Case Numbers (including

defendant number), Total Amount, Joint and

Several Amount, and corresponding payee, if

appropriate.

As set forth on page 7.

 The defendant shall pay the cost of prosecution.

 The defendant shall pay the following court

cost(s):

 The defendant shall forfeit the defendant’s

interest in the following property to the United States:

87a

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) AVAA assessment, (5) fine principal, (6)

fine interest, (7) community restitution, (8) JVTA

assessment, (9) penalties, and (10) costs, including

cost of prosecution and court costs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.