Petition for Writ of Certiorari — Timothy I. Carpenter, Petitioner v. United States

No. 23-___

IN THE

TIMOTHY IVORY CARPENTER,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Harold Gurewitz

GUREWITZ & RABEN, PLC

333 W. Fort Street

Suite 1400

Detroit, MI 48226

Jeffrey L. Fisher

Counsel of Record

Pamela S. Karlan

Easha Anand

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

QUESTION PRESENTED

Two provisions of the First Step Act (Sections 401

and 403) significantly reduce mandatory minimum

sentences for certain federal firearm and drug

offenses. First Step Act of 2018, Pub. L. No. 115-391,

§§ 401, 403, 132 Stat. 5194, 5220-22 (FSA). These

reduced minimums apply to all offenses committed

after December 21, 2018, the Act’s date of enactment.

As relevant here, they also apply to “any offense that

was committed before the date of enactment of this

Act, if a sentence for the offense has not been imposed

as of such date of enactment.” FSA §§ 401(c), 403(b).

The question presented here is: Do the sentencing

reforms in Section 403 of the First Step Act apply

when a district court sentences an individual whose

offense was committed before the Act’s effective date

but whose initial sentence was vacated afterwards?

ii

RELATED PROCEEDINGS

United States v. Green et al., No. 12-cr-20218-004

(E.D. Mich. Apr. 28, 2014)

United States v. Carpenter, No. 14-1572 (6th Cir.

Apr. 13, 2016)

Carpenter v. United States, No. 16-402 (U.S. June

22, 2018)

United States v. Carpenter, No. 14-1572 (6th Cir.

June 11, 2019)

United States v. Carpenter, No. 14-1572 (6th Cir.

Dec. 19, 2019)

United States v. Green et al., No. 12-cr-20218-004

(E.D. Mich. Mar. 3, 2022)

United States v. Carpenter, No. 22-1198 (6th Cir.

May 2, 2023)

United States v. Carpenter, No. 22-1198 (6th Cir.

Sept. 18, 2023)

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

RELATED PROCEEDINGS ....................................... ii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI ..............1

OPINIONS BELOW .....................................................1

JURISDICTION ...........................................................1

RELEVANT STATUTORY PROVISIONS ..................1

STATEMENT OF THE CASE .....................................2

A. Statutory background .....................................2

B. Factual and procedural background...............4

REASONS FOR GRANTING THE WRIT...................8

I.

There is a square and entrenched conflict

over whether the First Step Act applies in

this situation ..........................................................8

II. The question presented is important ..................11

III. This case presents an ideal vehicle to

resolve this pressing question .............................15

IV. The Sixth Circuit’s construction of the Act

is incorrect............................................................16

CONCLUSION ...........................................................27

APPENDIX

Appendix A, Opinion of the U.S. Court of

Appeals for the Sixth Circuit ........................1a

Appendix B, Order of the U.S. Court of

Appeals for the Sixth Circuit Denying

Rehearing En Banc .......................................6a

Appendix C, Opinions Regarding the Order

of the U.S. Court of Appeals for the

iv

Sixth Circuit Denying Rehearing En

Banc ...............................................................8a

Appendix D, First Step Act of 2018, Pub. L.

115-351 (Title IV – Sentencing Reform) ..... 25a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Abney v. United States,

431 U.S. 651 (1977)..............................................20

Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104 (1991)..............................................20

Bond v. United States,

572 U.S. 844 (2014)..............................................19

Calderon v. Thompson,

523 U.S. 538 (1998)..............................................23

Carpenter v. United States,

138 S. Ct. 2206 (2018)............................................5

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975)..............................................20

Davis v. Mich. Dep’t of Treasury,

489 U.S. 803 (1989)..............................................22

Davis v. United States,

417 U.S. 333 (1974)..............................................14

Deal v. United States,

508 U.S. 129 (1993)................................................3

Dean v. United States,

581 U.S. 62 (2017)..................................................5

Dorsey v. United States,

567 U.S. 260 (2012)........................................ 24-26

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)..............................................22

Hesser v. United States,

40 F.4th 1221 (11th Cir. 2022) ............................13

vi

Holland v. Florida,

560 U.S. 631 (2010)..............................................20

Lockwood v. Jones,

7 Conn. 431 (1829) ...............................................17

Magwood v. Patterson,

561 U.S. 320 (2010)..............................................20

North Carolina v. Pearce,

395 U.S. 711 (1969)........................................ 18, 19

Pepper v. United States,

562 U.S. 476 (2011)..............................................18

United States v. Ayres,

76 U.S. 608 (1870)................................................17

United States v. Ball,

163 U.S. 622 (1896)..............................................18

United States v. Barnes,

948 F.2d 325 (7th Cir. 1991).......................... 18, 19

United States v. Bethea,

841 Fed. Appx. 544 (4th Cir. 2021) ............. 4, 9, 10

United States v. Bowen,

936 F.3d 1091 (10th Cir. 2019)............................14

United States v. Burke,

863 F.3d 1355 (11th Cir. 2017)............................18

United States v. Carpenter,

819 F.3d 880 (6th Cir. 2016)..................................5

United States v. Carpenter,

788 Fed. Appx. 364 (6th Cir. 2019) .......................6

United States v. Carpenter,

926 F.3d 313 (6th Cir. 2019)..................................5

United States v. Daniels,

2023 WL 2588172 (M.D. Ala. Mar. 21, 2023) .....10

vii

United States v. Davis,

139 S. Ct. 2319 (2019)..........................................14

United States v. Duffey,

No. 22-10265 (5th Cir.) ........................................10

United States v. Figueroa,

530 F. Supp. 3d 437 (S.D.N.Y. 2021) ..................10

United States v. Henry,

983 F.3d 214 (6th Cir. 2020)........................ 2, 3, 24

United States v. Jackson,

995 F.3d 522 (6th Cir. 2021), cert. denied,

142 S. Ct. 1234 (2022)............ 6, 7, 9, 11, 17, 19, 24

United States v. Jordan,

952 F.3d 160 (4th Cir. 2020)................................23

United States v. Lee,

2023 WL 5422727 (8th Cir. Aug. 23, 2023) ........18

United States v. Maldonado,

996 F.2d 598 (2d Cir. 1993) ........................... 17-18

United States v. Mapuatuli,

No. 19-10233 (9th Cir. May 12, 2020) ........... 26-27

United States v. Merrell,

37 F.4th 571 (9th Cir. 2022) .......................8-11, 23

United States v. Mitchell,

38 F.4th 382 (3d Cir. 2022).............. 4, 9, 11, 17, 19

United States v. Mitchell,

944 F.3d 116 (3d Cir. 2019) .................................13

United States v. Muhammad,

478 F.3d 247 (4th Cir. 2007)................................19

United States v. Nix,

2023 WL 4457894 (W.D.N.Y. July 11, 2023) ......10

United States v. Reed,

755 Fed. Appx. 350 (5th Cir. 2018) .....................13

viii

United States v. Taylor,

142 S. Ct. 2015 (2022)..........................................14

United States v. Uriarte,

2019 WL 1858516 (N.D. Ill. Apr. 25, 2019) .. 24-25

United States v. Uriarte,

975 F.3d 596 (7th Cir. 2020) (en banc) ... 11, 23, 24

United States v. Walker,

830 Fed. Appx. 12 (2d Cir. 2020)................... 10, 15

Warden, Lewisburg Penitentiary v. Marrero,

417 U.S. 653 (1974)..............................................25

Welch v. United States,

578 U.S. 120 (2016)..............................................14

Williams v. Floyd,

27 N.C. 649 (1845) ...............................................17

Ysleta Del Sur Pueblo v. Texas,

142 S. Ct. 1929 (2020)..........................................22

Statutes

1 U.S.C. § 109 ....................................................... 25, 26

18 U.S.C. § 924(c) .......................................... 2-6, 12-16

18 U.S.C. § 924(c)(1)(A)................................................2

18 U.S.C. § 924(c)(1)(A)(i) ............................................3

18 U.S.C. § 924(c)(1)(C)................................................2

18 U.S.C. § 924(c)(3)(B)..............................................14

21 U.S.C. § 841(a).........................................................4

28 U.S.C. § 1254(1).......................................................1

28 U.S.C. § 1257 .........................................................20

28 U.S.C. § 1291 .........................................................20

28 U.S.C. § 2255 ................................................... 13, 14

28 U.S.C. § 2255(a).....................................................14

ix

28 U.S.C. § 2255(f)(3) .................................................14

28 U.S.C. § 2255(h)(2) ................................................14

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

132 Stat. 5194 ....... i, 1, 2, 6, 8-11, 15, 16, 22, 23, 25

FSA § 401 ...................i, 3, 4, 8, 9, 11-14, 16, 21, 24

FSA § 401(a)(2)(A)(ii)....................................... 4, 12

FSA § 401(c) ............................ i, 4, 8, 16, 22, 23, 26

FSA § 403 .......................i, 2, 3, 8-14, 16, 21, 24, 26

FSA § 403(a)...........................................................3

FSA § 403(b).......... i, 3, 4, 6-9, 11, 16-17, 19-23, 26

Hobbs Act, 18 U.S.C. § 1951, et seq. .................. 4, 5, 14

Legislative Materials

164 Cong. Rec. (daily ed. Dec. 17, 2018)....................22

164 Cong. Rec. (daily ed. Dec. 18, 2018).............. 11-12

164 Cong. Rec. (daily ed. Dec. 19, 2018).............. 22-23

Hearings Before the Over-Criminalization Task

Force of 2014 of the House Commission on

the Judiciary, 113th Cong. (2014) .........................3

Other Authorities

Black’s Law Dictionary (11th ed. 2019) ....................18

Britannica Dictionary, Ask the Editor: Past

Perfect and Present Perfect Tenses .......................21

Chicago Manual of Style (17th ed. 2017) ..................21

Human Rights Watch, An Offer You Can’t

Refuse: How US Federal Prosecutors Force

Drug Defendants to Plead Guilty (2013) ................3

Ross, Karen M., Essential Legal English in

Context: Understanding the Vocabulary

of US Law and Government (2019) ......................18

x

Scalia, Antonin & Garner, Bryan A., Reading

Law: The Interpretation of Legal Texts (2012).....20

U.S. Senate Committee on the Judiciary,

Senate Passes Landmark Criminal

Justice Reform (Dec. 18, 2018) ......................... 2, 11

U.S. Sentencing Commission, 2011 Report to

Congress: Mandatory Minimum Penalties in

the Federal Criminal Justice System (2011)..........3

U.S. Sentencing Commission, The First Step

Act of 2018: One Year of Implementation

(2020).....................................................................13

U.S. Sentencing Commission, Life Sentences

in the Federal System (2022) ................................12

U.S. Sentencing Commission, Primer: Drug

Offenses (2023) ......................................................13

U.S. Sentencing Commission, QuickFacts:

Federal Offenders in Prison (2023) ......................13

U.S. Sentencing Commission, Sentence and

Prison Impact Estimate Summary, S. 756,

The First Step Act of 2018 (2019) .........................12

Wolters Kluwer Bouvier Law Dictionary

(compact ed. 2011) ................................................18

PETITION FOR A WRIT OF CERTIORARI

Petitioner Timothy Ivory Carpenter respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Sixth

Circuit.

OPINIONS BELOW

The panel decision of the United States Court of

Appeals for the Sixth Circuit is unpublished and

reprinted in the Appendix to the Petition (“Pet. App.”)

at 1a-5a. The order denying rehearing en banc and

accompanying opinions (Pet. App. 6a-24a) are

published at 80 F.4th 790. The relevant proceedings in

the district court are unpublished.

JURISDICTION

The judgment of the court of appeals that gives

rise to this petition was entered on May 2, 2023. Pet.

App. 1a. A timely petition for rehearing was denied on

September 18, 2023. Pet. App. 7a. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

The relevant provisions of the First Step Act of

2018, Pub. L. No. 115-391, 132 Stat. 5194, are

reproduced at Pet. App. 25a-30a.

2

STATEMENT OF THE CASE

This case presents an important question of

federal sentencing law over which the courts of

appeals are openly divided, and where the

Government agrees the lower court’s position on the

issue is incorrect.

A. Statutory background

The First Step Act of 2018 made “once-in-ageneration reforms to America’s prison and sentencing

system.” Senate Passes Landmark Criminal Justice

Reform, U.S. Senate Comm. on the Judiciary (Dec. 18,

2018). “[T]he product of a remarkable bipartisan

effort,” the Act sought “to remedy past overzealous use

of mandatory-minimum sentences.” United States v.

Henry, 983 F.3d 214, 218 (6th Cir. 2020).

Section 403 of the Act—the provision directly at

issue in this case—amends 18 U.S.C. § 924(c), which

forbids using, carrying, or possessing a firearm in

connection with a “crime of violence or drug trafficking

crime.” 18 U.S.C. § 924(c)(1)(A). A defendant’s first

Section 924(c) conviction carries a mandatory

minimum sentence of at least 5 years. Id. Sentences

for additional Section 924(c) convictions must be

“stack[ed],” meaning they must run consecutively

rather than concurrently to any other term of

imprisonment. See Henry, 983 F.3d at 217-18.

Before the Act, each “second or subsequent”

Section 924(c) conviction triggered a 25-year

mandatory

minimum

sentence.

18

U.S.C.

§ 924(c)(1)(C) (2017). And this Court held that this

heightened mandatory minimum applied even to

additional Section 924(c) convictions obtained in the

same proceeding as a defendant’s first Section 924(c)

3

conviction. Deal v. United States, 508 U.S. 129, 134-35

(1993).

The practice of stacking multi-decade sentences

for first-time Section 924(c) offenders, often resulting

in de facto life sentences, drew widespread

condemnation. See, e.g., U.S. Sent’g Comm’n, 2011

Report to Congress: Mandatory Minimum Penalties in

the Federal Criminal Justice System 359-62 (2011);

Hum. Rts. Watch, An Offer You Can’t Refuse: How US

Federal Prosecutors Force Drug Defendants to Plead

Guilty

(2013);

Hearings

Before

the

OverCriminalization Task Force of 2014 of the H. Comm.

on the Judiciary, 113th Cong. (2014) (Hon. Irene M.

Keeley, Judicial Conference of the United States).

Congress enacted Section 403 to ensure that

Section 924(c)’s heightened mandatory minimums

apply “only to defendants who [a]re truly recidivists.”

Henry, 983 F.3d at 218. To that end, Section 403(a)

clarifies that the 25-year mandatory minimum is

triggered only when a Section 924(c) violation “occurs

after a prior conviction under this subsection has

become final.” FSA § 403(a). (Otherwise, any stacking

under Section 924(c)(1)(A)(i) will involve just the 5year mandatory minimum for each offense.)

Section 403, of course, applies to future criminal

offenses. It also applies to certain “[p]ending [c]ases.”

FSA § 403(b). Specifically, Section 403(b) provides

that Section 403’s sentencing reforms apply to “any

offense that was committed before the date of

enactment of this Act, if a sentence for the offense has

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

An identically worded applicability provision also

appears within Section 401 of the Act. That section

reduces mandatory sentences and alters related

4

sentencing rules for various federal drug offenses. For

example, before the Act, a mandatory sentence of “life

without release” attached to certain violations of 21

U.S.C. § 841(a) where the defendant had “two or more

prior convictions for a felony drug offense.” FSA

§ 401(a)(2)(A)(ii). Section 401 reduces that mandatory

life sentence to 25 years and alters which prior

offenses trigger the recidivist enhancement to include

only “serious drug felon[ies] or serious violent

felon[ies].” Id. Section 401(c) is the applicability

provision for these reforms. Like Section 403(b), it

provides that the new sentencing rules “shall apply to

any offense that was committed before the date of

enactment of this Act, if a sentence for the offense has

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

§ 401(c).

Because Sections 401(c) and 403(b) use exactly the

same language, “circuit courts have construed them to

have the same meaning.” United States v. Bethea, 841

Fed. Appx. 544, 548 n.5 (4th Cir. 2021). Indeed, the

courts treat holdings regarding the reach of either of

these provisions as definitive constructions of the

other. See, e.g., United States v. Mitchell, 38 F.4th 382,

389 (3d Cir. 2022).

B. Factual and procedural background

1. About a decade ago, petitioner Timothy

Carpenter acted “mostly as a lookout” in a series of

robberies of Radio Shack and T-Mobile stores. Pet.

App. 1a. For this conduct, he was convicted after trial

of six counts of Hobbs Act robbery and five counts of

using or carrying a firearm during a crime of violence

under 18 U.S.C. § 924(c). Id. 2a. In 2014, the district

court sentenced him to 116 years of imprisonment. Id.

5

The length of this sentence was largely due to the

Section 924(c) mandatory minimums in place at the

time. Pet. App. 2a. Mr. Carpenter received 135 months

(11.25 years) for his Hobbs Act convictions. Id. Even

though he had never previously been convicted of

violating Section 924(c), he received 1,260 months

(105 years) for his five Section 924(c) convictions: 5

years for the first count and 25 years for each of the

four additional counts. See id. All of those sentences

were stacked. See id.

2. Mr. Carpenter appealed, and the Sixth Circuit

affirmed. United States v. Carpenter, 819 F.3d 880

(6th Cir. 2016). This Court then granted certiorari to

decide whether cell-site location information

introduced against Mr. Carpenter at trial was

obtained in violation of the Fourth Amendment. The

Court held that it was and remanded for further

proceedings. Carpenter v. United States, 138 S. Ct.

2206, 2223 (2018).

3. On remand, the Sixth Circuit again upheld Mr.

Carpenter’s convictions, holding that the good-faith

exception to the exclusionary rule allowed the

admission of the cellular location evidence at issue.

United States v. Carpenter, 926 F.3d 313, 317-18 (6th

Cir. 2019).

Mr. Carpenter then sought rehearing. As relevant

here, he argued that this Court’s intervening decision

in another case, Dean v. United States, 581 U.S. 62

(2017), made clear that his sentence was invalid. Dean

held that sentencing courts may consider the length of

mandatory minimum sentences under Section 924(c)

when calibrating sentences for predicate offenses. Id.

at 69. Yet the sentencing court in Mr. Carpenter’s case

had thought it lacked that authority. The Sixth Circuit

6

accordingly vacated Mr. Carpenter’s sentence and

remanded for resentencing. United States v.

Carpenter, 788 Fed. Appx. 364, 364-65 (6th Cir. 2019).

4. At his resentencing, Mr. Carpenter argued that

the district court should apply the newly enacted First

Step Act. He emphasized that Section 403(b) renders

the Act applicable to pre-Act offenses where “a

sentence has not been imposed.” Pet. App. 4a. Under

the Act, Mr. Carpenter’s mandatory minimum

sentence for his five Section 924(c) convictions would

have been 25 years (that is, 5 years for each count,

stacked on top of one another), as opposed to the 105year mandatory minimum that Section 924(c)

previously required. Id. 3a.

The Government responded that the Sixth

Circuit’s decision in United States v. Jackson, 995 F.3d

522 (6th Cir. 2021), cert. denied, 142 S. Ct. 1234 (2022),

foreclosed Mr. Carpenter’s position. In Jackson, the

Sixth Circuit held that Section 403(b) does not apply

where a sentence existed on the Act’s effective date,

even if that sentence is later vacated. Id. at 525.

The district court agreed with the Government

and applied the version of Section 924(c) that the Act

had superseded. Pet. App. 4a. Again, the district court

sentenced Mr. Carpenter to 116 years imprisonment—

105 years of which was attributable to the Section

924(c) counts. Id. 1a.

5. A panel of the Sixth Circuit affirmed. Pet. App.

5a. It agreed with the district court that, under

Jackson, the First Step Act’s sentencing reforms do

not apply to a defendant’s resentencing “when his first

sentence was not vacated until after the Act became

law.” Id. 4a.

7

Mr. Carpenter then sought rehearing en banc. He

stressed that decisions from the Third, Fourth, and

Ninth Circuits conflict with Jackson’s interpretation

of Section 403(b) and that the Government had

changed its position on the issue. The Government

agreed with Mr. Carpenter that rehearing was

warranted and urged the Sixth Circuit to adopt the

majority rule. U.S. Resp. Defendant-Appellant’s Pet.

Reh’g En Banc 1, ECF No. 27. The Government

explained that “[b]ased on text, context, and purpose,”

the Act’s applicability provisions are “best read as

adopting a middle ground between the default regime

of imposing more lenient penalties only on postenactment offenders and allowing the reopening of

final judgments with the administrative and finality

costs that entails.” Id. at 13 (citation omitted).

The Sixth Circuit nevertheless refused to grant

rehearing en banc. Pet. App. 7a. Four judges

maintained that Jackson was “correct.” Id. 8a

(Kethledge, J., concurring). Three other judges

dissented on the ground that “Jackson was wrongly

decided” because a sentence vacated after the Act’s

effective date is, as a matter of law, “void from the

start, including on the date the Act was enacted.” Id.

14a, 16a (Griffin, J., dissenting). These judges also

explained that “this case involves a question of

exceptional importance.” Id. 14a. Three additional

judges dissented simply on the ground that the

question is one “of exceptional importance” that

requires uniformity across the circuits. Id. 21a

(Bloomekatz, J., dissenting). The six remaining active

judges did not sign any opinion or otherwise reveal

their votes.

6. This petition for certiorari follows.

8

REASONS FOR GRANTING THE WRIT

Sections 401 and 403 of the First Step Act ushered

in historic sentencing reforms for certain drug and

firearm offenses. They also contain identically worded

applicability provisions stating that their reforms

“apply to any offense that was committed before the

date of enactment of this Act, if a sentence for the

offense has not been imposed as of such date of

enactment.” FSA §§ 401(c), 403(b).

The courts of appeals are split over whether these

applicability provisions cover defendants in Mr.

Carpenter’s position—namely, individuals whose

original sentences, entered prior to the Act, have been

vacated after the Act’s effective date. As the

Government itself has recognized, the Sixth Circuit

erred below in holding that the provisions do not so

apply. Mr. Carpenter’s case presents this important

question in a clean vehicle that highlights the stakes

involved. The Court should grant review and reverse.

I.

There is a square and entrenched conflict

over whether the First Step Act applies in

this situation.

The courts of appeals are openly divided over the

scope of the applicability provisions in Sections 401

and 403. This split is likely to deepen further, and only

this Court can resolve it.

1. Published decisions from the Third and Ninth

Circuits, as well as an unpublished decision from the

Fourth Circuit, hold that the applicability language in

Sections 401 and 403 of the Act covers individuals in

Mr. Carpenter’s position. These courts reason that

whenever a defendant’s sentence has been vacated, his

sentence is “null and void,” such that “a sentence has

9

not been imposed” upon him for purposes of the Act’s

applicability provisions. United States v. Merrell, 37

F.4th 571, 576 (9th Cir. 2022) (construing

Section 403); see also United States v. Mitchell, 38

F.4th 382, 389 (3d Cir. 2022) (Sections 401 and 403);

United States v. Bethea, 841 Fed. Appx. 544, 551 (4th

Cir. 2021) (Section 401).

2. As numerous judges on the Sixth Circuit and

other courts recognize, the Sixth Circuit rejects this

majority rule and holds Section 403 inapplicable in

this situation. Pet. App. 18a-19a (Griffin, J.,

dissenting); id. 22a (Bloomekatz, J., dissenting); see

also Mitchell, 38 F.4th at 386 (“Interpreting

[Section 403] has vexed, and split, our sister

circuits.”); Merrell, 37 F.4th at 575 (referencing

“varying results” among the circuits).

In United States v. Jackson, 995 F.3d 522 (6th Cir.

2021), cert. denied, 142 S. Ct. 1234 (2022), the Sixth

Circuit refused to follow the Fourth Circuit’s holding

in Bethea—the sole on-point appellate decision at the

time. The Sixth Circuit held that a court imposing a

new sentence on someone in Mr. Carpenter’s position

must apply the penalty provisions that Section 403

superseded, even though the defendant’s original

sentence has “‘no legal effect’ anymore.” Jackson, 995

F.3d at 525 (citation omitted).

Although the Third and Ninth Circuits rejected

Jackson before this case reached the Sixth Circuit, the

panel below was “compelled [by Jackson] to conclude”

the First Step Act did not apply at Mr. Carpenter’s

resentencing. Pet. App. 2a, 4a. The full Sixth Circuit

then refused to grant rehearing en banc to reconsider

its interpretation of Section 403(b). Id. 7a.

10

3. The split is even deeper than 3-1 in practice.

The Second Circuit has remanded at least one case

following post-Act vacatur of a pre-Act sentence while

emphasizing that “the government agreed” the

defendant “would benefit from the Act’s reforms” at

resentencing. United States v. Walker, 830 Fed. Appx.

12, 17 n.2 (2d Cir. 2020). And district courts in the

Second Circuit are applying the First Step Act’s

reforms to other defendants in Mr. Carpenter’s

position. See, e.g., United States v. Figueroa, 530 F.

Supp. 3d 437, 444 (S.D.N.Y. 2021); United States v.

Nix, 2023 WL 4457894, at *2 (W.D.N.Y. July 11, 2023).

A district court within the Eleventh Circuit has

applied Section 403 to a defendant in Mr. Carpenter’s

position as well. See United States v. Daniels, 2023 WL

2588172, at *3 (M.D. Ala. Mar. 21, 2023).

By contrast, at least one district court within the

Fifth Circuit has repeatedly held that the Act’s

sentencing reforms do not apply to defendants whose

pre-Act sentences are vacated after the Act’s effective

date. Three defendants have appealed such orders,

and those appeals are now pending in the Fifth

Circuit. See United States v. Duffey, No. 22-10265 (5th

Cir.). That forthcoming decision promises to deepen

the conflict even further.

4. This conflict is ready for resolution. To start, the

question presented has amply percolated. Panels of

the Fourth and Ninth Circuits have issued majority

and dissenting opinions regarding whether the First

Step Act applies to defendants in Mr. Carpenter’s

position. See Bethea, 841 Fed. Appx. at 556

(Quattlebaum, J., dissenting); Merrell, 37 F.4th at 578

(Boggs, J., dissenting). For the Sixth Circuit’s part, the

judges who have expressed views on the issue have

11

divided 5-3, issuing four separate opinions. See Pet.

App. 8a (Kethledge, J., concurring); id. 14a (Griffin, J.,

dissenting); Jackson, 995 F.3d at 523 (majority

opinion); id. at 526 (Moore, J., dissenting).

Two other opinions have made significant

contributions to the debate as well. First, in United

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

banc), the Seventh Circuit declined to address the

specific question presented here. Id. at 602 n.3. But in

a lengthy dissent, then-Judge Barrett opined that

Section 403 does not apply to defendants in Mr.

Carpenter’s position. Id. at 606 (Barrett, J.,

dissenting). Second, when the Third Circuit decided

the question presented, Judge Bibas wrote separately

to explain that then-Judge Barrett’s interpretation of

Section 403(b) cannot be squared with the legal and

historical conception of vacatur. See Mitchell, 38 F.4th

at 392 (Bibas, J., concurring in the judgment).

The split is also entrenched. The Third and Ninth

Circuits have expressly considered and rejected the

Sixth Circuit’s reading of the Act’s applicability

provisions. Mitchell, 38 F.4th at 386 n.22, 389; Merrell,

37 F.4th at 575. And in this case, the Sixth Circuit

refused to reconsider the issue en banc, despite the

Government urging it to do so. Pet. App. 7a. Only this

Court can resolve the conflict.

II. The question presented is important.

1. As noted above, the First Step Act made “oncein-a-generation reforms to America’s prison and

sentencing system.” Senate Passes Landmark

Criminal Justice Reform, U.S. Senate Comm. on the

Judiciary (Dec. 18, 2018). And the “changes to

mandatory minimums” in Sections 401 and 403 were

among the Act’s “most important.” 164 Cong. Rec.

12

S7748 (daily ed. Dec. 18, 2018) (Sen. Klobuchar); see

also id. at S7781 (Sen. Cruz) (lauding this “major bill

that moves in the direction of justice” by “lower[ing]

mandatory minimums”).

Indeed, the “real human costs” at stake with

respect to the applicability provisions are enormous.

Pet. App. 23a (Bloomekatz, J., dissenting). Before

Section 403, the average sentence in cases including

second or subsequent convictions under Section 924(c)

was 52 years. See U.S. Sent’g Comm’n, Sentence and

Prison Impact Estimate Summary, S. 756, The First

Step Act of 2018, at 5 (2019), https://perma.cc/YN63KN5T. In other words, the average pre-Act defendant

received a “de facto life sentence.” U.S. Sent’g Comm’n,

Life Sentences in the Federal System 1 (2022). But

under Section 403, the average sentence plummets to

less than 25 years—a difference of nearly three

decades. See U.S. Sent’g Comm’n, Sentence and Prison

Impact Estimate Summary, S. 756, The First Step Act

of 2018, at 5 (2019).

Section 401 also brought dramatic change. Its

amendments to drug penalty provisions reduce

affected sentences by an average of over 20%. U.S.

Sent’g Comm’n, Sentence and Prison Impact Estimate

Summary, S. 756, The First Step Act of 2018, at 3

(2019). Of particular note, one subsection of

Section 401 lowers the prior mandatory minimum of

life without release to 25 years for certain drug crimes.

FSA § 401(a)(2)(A)(ii).

2. The liberty interest at stake on a defendant-bydefendant basis is reason enough to grant certiorari.

That the question presented arises regularly makes

review all the more warranted. To begin, the

population of federal prisoners with sentences under

13

the penalty provisions that Sections 401 and 403

amended is quite substantial. Section 403 amended 18

U.S.C. § 924(c). Nearly 13% of the individuals in

federal custody for a federal offense were convicted

under

Section 924(c).

U.S.

Sent’g

Comm’n,

QuickFacts: Federal Offenders in Prison 1 (2023).

Many—like Mr. Carpenter—are serving multiple

“stacked” Section 924(c) sentences. U.S. Sent’g

Comm’n, The First Step Act of 2018: One Year of

Implementation 36 (2020). In addition, Section 401

amended the penalty provisions of “the most

commonly prosecuted drug offenses” in the country.

U.S. Sent’g Comm’n, Primer: Drug Offenses 1 (2023),

https://perma.cc/6B46-8AHL.

The question presented can arise for defendants

with these sorts of convictions in at least three

scenarios. First, there are defendants whose pre-Act

sentences have been vacated and who argue that

Section 401 or 403 applies to them at resentencing.

Such vacaturs might have occurred on direct review

(as with Mr. Carpenter) or because defendants

obtained post-conviction relief under 28 U.S.C. § 2255.

Second, there are defendants whose sentences

have not yet been vacated but who will obtain such

relief in the future either on direct appeal or on an

initial Section 2255 proceeding. Sentences may be

vacated for myriad reasons, from misapplication of the

sentencing guidelines, e.g., United States v. Reed, 755

Fed. Appx. 350, 351 (5th Cir. 2018), to ineffective

assistance of counsel, e.g., Hesser v. United States, 40

F.4th 1221, 1229 (11th Cir. 2022), to violations of

procedural due process, e.g., United States v. Mitchell,

944 F.3d 116, 120-23 (3d Cir. 2019).

14

Section 2255 also enables defendants to seek

relief when this Court construes the federal statutes

under which they were convicted or sentenced more

narrowly than the lower courts in which they were

prosecuted. See 28 U.S.C. § 2255(a); see also Davis v.

United States, 417 U.S. 333, 342-47 (1974). The

limitations period for those filings runs from the date

the Court issues such decisions. 28 U.S.C. § 2255(f)(3).

Therefore, future rulings from this Court construing

the criminal statutes to which Sections 401 and 403

apply—namely, certain controlled-substances laws

and 18 U.S.C. § 924(c)—could enable new groups of

defendants to move for vacatur. And in the past four

years, this Court has issued two such decisions in the

Section 924(c) context alone. See United States v.

Taylor, 142 S. Ct. 2015 (2022) (holding that attempted

Hobbs Act robbery cannot be a predicate for a

Section 924(c) charge); United States v. Davis, 139 S.

Ct. 2319 (2019) (voiding the “residual clause” of

Section 924(c)(3)(B) for vagueness).

Third, individuals sentenced before the Act who

have already lost a motion for relief under

Section 2255 can potentially file second or successive

motions that result in resentencing. Defendants may

file such motions when this Court announces new

constitutional rules that apply retroactively. 28 U.S.C.

§ 2255(h)(2). This Court periodically does so. As just

noted, this Court recently held that the residual clause

of Section 924(c)(3)(B) is unconstitutionally vague.

Davis, 139 S. Ct. at 2336. And the Court has made

clear that this type of holding applies retroactively.

Welch v. United States, 578 U.S. 120, 130 (2016); see

also United States v. Bowen, 936 F.3d 1091, 1100-01

(10th Cir. 2019).

15

III. This case presents an ideal vehicle to

resolve this pressing question.

This case provides an excellent vehicle for

clarifying the scope of the First Step Act’s applicability

provisions.

1. The question was presented and addressed at

each stage below. During his resentencing, Mr.

Carpenter asked the district court to apply the Act to

him. See Def.’s Sent’g Mem. 5-11, ECF No. 600; Sent’g

Hr’g Tr. 5-6, ECF No. 616. The district court rejected

his argument and held the “First Step Act doesn’t

apply.” Sent’g Hr’g Tr. 6, ECF No. 616.

Mr. Carpenter pressed the issue again on direct

appeal to the Sixth Circuit, and the court of appeals

rejected his claim on the merits. Pet. App. 2a. Then,

when Mr. Carpenter petitioned for rehearing en banc,

the court of appeals denied review, id. 7a, generating

two more opinions on the merits, id. 8a, 14a.

2. The question presented is outcomedeterminative for Mr. Carpenter’s appeal, and his case

highlights the stakes involved in interpreting the

applicability provisions. Under the Sixth Circuit’s

holding that the Act does not apply here, four of Mr.

Carpenter’s five Section 924(c) convictions remain

subject to the pre-Act mandatory minimums of 25

years, resulting in a 105-year sentence for those five

counts. Pet. App. 3a. This sentence (coupled with the

11-year sentence for the robbery counts) is “extreme

by any measure.” Id. 13a (Kethledge, J., concurring);

see also United States v. Walker, 830 Fed. Appx. 12, 16

(2d Cir. 2020) (noting that a district judge decried a

105-year sentence for similar conduct under the

previous version of Section 924(c) as “unrealistic,

unbelievable, and incredible”).

16

Under the rule in the Third, Fourth, and Ninth

Circuits, the district court would have applied the

First Step Act’s reforms at Mr. Carpenter’s

resentencing. See Pet. App. 18a-19a (Griffin, J.,

dissenting). As a result, the mandatory minimum

sentence for his Section 924(c) convictions would be

“eighty years” shorter, id. 23a (Bloomekatz, J.,

dissenting), giving 38-year-old Mr. Carpenter a

reasonable prospect of freedom someday.

3. Finally, this is the right time for the Court to

resolve this circuit split. Now that the Government

agrees with Mr. Carpenter’s position on the merits, no

petitions for certiorari will be forthcoming from any

court of appeals that applies the majority rule. And

nothing would be gained by waiting for another case

from the Sixth Circuit or any other court of appeals

that adopts a conflicting view of the Act. As explained

above, the issue has sufficiently percolated, and the

conflict has no prospect of disappearing on its own. See

supra at 10-11.

IV. The Sixth Circuit’s construction of the Act is

incorrect.

As the Government itself has recognized, the

Sixth Circuit’s interpretation of the First Step Act is

wrong. Sections 401(c) and 403(b) declare that the

Act’s sentencing amendments apply to “any offense”

committed before enactment, so long as “a sentence for

the offense has not been imposed” as of the Act’s date

of enactment. An individual facing resentencing after

their original sentence was vacated is, in the eyes of

the law, a person upon whom a sentence has never

been imposed.

1. Sections 401 and 403 apply at sentencing when

“a sentence has not been imposed.” FSA §§ 401(c),

17

403(b). As Judge Bibas has explained, the “key

question” is thus whether vacatur “void[s] the

sentence ab initio, as if it had never happened. Or does

it just erase the sentence’s legal effect going forward?”

United States v. Mitchell, 38 F.4th 382, 392 (3d Cir.

2022) (Bibas, J., concurring) (citation omitted). If

vacatur makes a sentence “void from the start,” then a

vacated sentence cannot legally be said to have been

imposed. Id.

In United States v. Jackson, 995 F.3d 522 (6th Cir.

2021), the Sixth Circuit characterized vacatur’s legal

effect as purely “prospective,” reasoning that it “does

not retroactively change” the defendant’s status before

the Act became effective. Id. at 525. But history,

tradition, and modern practice establish that vacatur

voids a past judgment in both directions—rendering it

not just a nullity for future purposes, but also

something that, legally speaking, never happened.

In the nineteenth and early twentieth centuries,

this Court and others “uniformly understood” that “a

vacated order never happened.” Mitchell, 38 F.4th at

392 (Bibas, J., concurring); see also, e.g., United

States v. Ayres, 76 U.S. 608, 610 (1870) (after a

judgment has been vacated, the judgment is “null and

void, and the parties are left in the same situation as

if no trial had ever taken place”); Lockwood v. Jones, 7

Conn. 431, 436 (1829) (vacatur “puts the parties in the

state, in which they were, immediately before the

judgment was rendered”); Williams v. Floyd, 27 N.C.

649, 656 (1845) (when an order is “stricken out” by the

court, “it is the same as if such order had never

existed”). Numerous courts of appeals have since

confirmed that “when a sentence has been vacated, the

defendant is placed in the same position as if he had

18

never been sentenced.” United States v. Maldonado,

996 F.2d 598, 599 (2d Cir. 1993).1 This Court has

likewise recognized that vacatur of a sentence “wipe[s]

the slate clean.” Pepper v. United States, 562 U.S. 476,

507 (2011).

Modern legal dictionaries are in accord,

explaining that to “vacate a ruling is to annul it,

treating it as if it had not been issued.” Vacatur

(Vacate), Wolters Kluwer Bouvier Law Dictionary

(compact ed. 2011); accord Vacate, Black’s Law

Dictionary (11th ed. 2019) (“To nullify or cancel; make

void; invalidate”); Karen M. Ross, Essential Legal

English in Context: Understanding the Vocabulary of

US Law and Government 156 (2019) (“An award,

judgment, or sentence that is vacated is set aside or

nullified, in effect removing it from existence.”).

Lest there be any doubt, numerous legal doctrines

depend on the rule that vacatur renders a past

judgment something that, in the eyes of the law, never

happened. Consider, for example, double jeopardy.

This Court has long made clear that defendants

retried following vacatur of their original convictions

are not put in jeopardy a second time. See North

Carolina v. Pearce, 395 U.S. 711, 719-20 (1969) (citing

United States v. Ball, 163 U.S. 622 (1896)). “[T]his

‘well-established

part

of

our

constitutional

jurisprudence’” rests on the premise—admittedly a

“fiction” from a purely historical perspective—that the

Accord United States v. Lee, 2023 WL 5422727, at *2 (8th

Cir. Aug. 23, 2023); United States v. Burke, 863 F.3d 1355, 1359

(11th Cir. 2017); United States v. Barnes, 948 F.2d 325, 330 (7th

Cir. 1991).

1

19

original conviction, upon being vacated, has been

“wholly nullified and the slate wiped clean.” Id. at 72021 (citation omitted). The new sentence is the “single

punishment for the offense.” Id. at 721.

Doctrine governing a defendant’s right to

allocute—that is, the right to address the court before

sentencing—is in accord. That right exists “only before

the imposition of sentence, not in all sentencing

situations.” United States v. Barnes, 948 F.2d 325, 329

(7th Cir. 1991). Still, courts hold that defendants

facing post-vacatur resentencing have the right to

address the court again, even if they exercised that

right when they were initially sentenced. Id. at 330;

see also United States v. Muhammad, 478 F.3d 247,

250 (4th Cir. 2007) (collecting other decisions in

accord). Here too, the vacatur creates a “clean slate.”

Barnes, 948 F.2d at 330.

Perhaps recognizing that the Sixth Circuit’s

conception of vacatur in Jackson is flawed, Judge

Kethledge asserted below that vacatur’s “legal effect”

is beside the point. See Pet. App. 11a-12a (opinion

concurring in the denial of rehearing en banc). In his

view, Section 403(b)’s phrase “has not been imposed”

asks simply whether, as a “historical fact,” the

defendant was ever sentenced. Id. 11a. If so, then the

Act does not apply, even when a defendant is being

resentenced from scratch. Id. 10a-11a. But “[w]e

should ask not whether a sentence was imposed as a

historical fact, but whether the law treats it as

imposed.” Mitchell, 38 F.4th at 392 (Bibas, J.,

concurring). “Part of a fair reading of statutory text is

recognizing that ‘Congress legislates against the

backdrop’ of certain unexpressed presumptions.”

Bond v. United States, 572 U.S. 844, 857 (2014)

20

(citation omitted). Chief among those presumptions is

that “common-law adjudicatory principles”—such as

vacatur’s legal effect—“apply except ‘when a statutory

purpose to the contrary is evident.’” Astoria Fed. Sav.

& Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)

(citation omitted).

After all, we are engaged here in reading law—

and not just any law, but law describing legal

procedure. The law of procedure is replete with

background principles, terms of art, and legal fictions

that make the judicial process work. The background

principle of equitable tolling, for example, sometimes

allows claims to be filed beyond their statutorily

defined limitations periods. See, e.g., Holland v.

Florida, 560 U.S. 631, 645-49 (2010). By a similar

token, statutory rules that require “final” judgments

or orders for an appeal sometimes allow appellate

review where the underlying litigation is not complete.

E.g., Abney v. United States, 431 U.S. 651, 657-59

(1977) (construing 28 U.S.C. § 1291); Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-81

(1975) (construing 28 U.S.C. § 1257). And a second-intime habeas petition is not even necessarily “second or

successive.” Magwood v. Patterson, 561 U.S. 320, 32324 (2010). The bottom line is that “when the law is the

subject, ordinary legal meaning is to be expected,

which often differs from common meaning.” Antonin

Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 73 (2012) (emphasis

added). The interplay between Section 403(b)’s phrase

“a sentence has not been imposed” and the legal

import of vacatur is no different.

21

2. Construing Section 403(b) to apply to

defendants in Mr. Carpenter’s position comports with

other aspects of the statute’s wording as well.

Most notably, the present-perfect verb tense of the

phrase “has not been imposed” requires an inquiry

into the ongoing legal validity of a previously imposed

sentence, not merely its past existence as a historical

fact. The present-perfect tense typically denotes a

condition that “continues up to the present.” Chicago

Manual of Style § 5.132 (17th ed. 2017). A vacated

sentence flunks that test. To be sure, the present

perfect can also denote “an act, state, or condition that

is now completed.” Id. But even then, it would be

inappropriate to use this verb tense to capture a

vacated sentence. When the present-perfect tense

references a past act, it implies that the referent has

not since been discredited or invalidated. See, e.g., Ask

the Editor: Past Perfect and Present Perfect Tenses,

Britannica Dictionary, https://perma.cc/3A64-V6MP.

That is not true with regard to a vacated sentence. If

Congress had wanted to bar Sections 401 and 403 from

applying in this context, it would at the very least have

rendered them inapplicable whenever a sentence “was

imposed” or “had been imposed” as of the date of

enactment.

Concurring below in the denial of rehearing en

banc, Judge Kethledge disagreed, contending that “the

statute’s use of the verb ‘imposed’” emphasizes “‘the

historical fact’ of the sentence’s imposition.” Pet. App.

9a (citation omitted). But this argument turns on a

grammatical misstep. Nominalizing “has been

imposed” into “imposition” shifts focus from the

present state of affairs to a discrete historical event. It

may well be that the imposition of a sentence occurs at

22

a fixed point in time. The relevant question, however,

is whether a sentence “has not been imposed” when an

individual faces resentencing following vacatur of his

original sentence. FSA § 403(b). For the reasons stated

above, the verb tense of the phrase “has not been

imposed” demands inquiry into a sentence’s continued

validity.

Judge Kethledge also opined that the statute’s use

of the indefinite article “a” before “sentence” “means

any kind of sentence, not just a valid or non-vacated

one.” Pet. App. 10a. This is also incorrect. If the phrase

“a sentence” were intended to capture vacated

sentences, Congress would have written “any

sentence” or even “an original sentence.” In fact,

Congress used the term “any” earlier in the

applicability provisions, in the phrase “any offense,” to

indicate an inclusive group of offenses. FSA §§ 401(c),

403(b). Congress’s decision to use different terms

should be given effect. See, e.g., Ysleta Del Sur

Pueblo v. Texas, 142 S. Ct. 1929, 1939 (2020).

3. Beyond grammar and linguistic meaning in

isolation, it is also a “fundamental canon of statutory

construction that the words of a statute must be read

in their context and with a view to their place in the

overall statutory scheme.” FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.

803, 809 (1989)). Here, the majority interpretation of

the Act’s applicability provisions is the only one that

makes sense in the overall context of the Act.

The First Step Act was simultaneously

monumental and incremental. In dramatic fashion,

Congress determined that sentences imposed for

decades under some of the most commonly prosecuted

23

federal crimes had been “overly harsh.” 164 Cong. Rec.

S7649 (daily ed. Dec. 17, 2018) (Sen. Grassley); see also

id. at S7828 (daily ed. Dec. 19, 2018) (Sen. Schumer)

(the Act “will make an extraordinary difference in

countless lives by making our sentencing laws fairer

and smarter”). In light of the implications of these

reforms for personal liberty and the fair

administration of justice, Congress made the reforms

applicable not only to future cases but also to

“[p]ending [c]ases.” FSA §§ 401(c), 403(b).

But the First Step Act does not apply to all

pending cases. “Finality is essential to both the

retributive and the deterrent functions of criminal

law.” Calderon v. Thompson, 523 U.S. 538, 554 (1998).

So the Act respects that principle. For example, “the

Act does not apply to a direct appeal by a defendant

sentenced before its enactment” whose sentence

remains valid. United States v. Merrell, 37 F.4th 571,

574 (9th Cir. 2022); accord United States v. Jordan,

952 F.3d 160, 171-72 (4th Cir. 2020) (citing other

courts holding same).

Sections 401(c) and 403(b) are designed to

harmonize the competing interests of sentencing

reform and finality. And only the majority rule carries

out this objective. That rule ensures that courts will

follow current law when—but only when—they have

to impose a sentence anyway, either for the first time

or because a defendant’s initial sentence has been

vacated. In other words, “Congress stanched, to the

degree that it could without overturning valid and

settled sentences,” the effects of “sentencing policies

that it considered no longer in the Nation’s best

interest.” United States v. Uriarte, 975 F.3d 596, 601

(7th Cir. 2020).

24

By contrast, the Sixth Circuit’s rule limits the

reach of the Act’s sentencing reforms with “no benefit

to finality.” U.S. Resp. Defendant-Appellant’s Pet.

Reh’g En Banc 13, ECF No. 27. The Sixth Circuit

agrees that Sections 401 and 403 apply to an

individual whose sentence was vacated before the Act

became effective. See United States v. Henry, 983 F.3d

214, 216 (6th Cir. 2020). But the Sixth Circuit holds

that those sentencing reforms do not apply to an

individual like Mr. Carpenter whose sentence is

vacated afterwards. Pet. App. 4a; Jackson, 995 F.3d at

525. There is no legitimate reason to distinguish

between these two situations. In either case, a

defendant’s sentence has been vacated and the court

must impose a new sentence.

Perhaps sensing difficulty in defending the line

the Sixth Circuit has drawn, Judge Kethledge instead

endorsed the position previously espoused by thenJudge Barrett—namely, that the Act does not apply to

any defendant who received a pre-Act sentence,

without regard to whether or when that sentence was

vacated. Pet. App. 9a-10a; see also Uriarte, 975 F.3d at

606-09 (Barrett, J., dissenting). But that position is

even less true to the overall context of the Act. It

excludes an even larger swath of defendants from the

Act’s reforms with zero benefit to finality.

Worse still, deeming Sections 401 and 403

inapplicable to all defendants who received pre-Act

sentences would “create disparities of a kind” that

modern sentencing statutes are designed to prevent.

See Dorsey v. United States, 567 U.S. 260, 276 (2012).

Consider how this unfairness could play out for two codefendants charged before the Act took effect:

25

One defendant pleads guilty. Another goes to

trial. The first defendant is sentenced and

appeals. The court of appeals vacates the

sentence and remands for resentencing by

which time the defendant who took the case

to trial is awaiting sentencing. Congress

passes the First Step Act at this point. The

two defendants stand convicted of the same

offenses and will stand before the same judge

to be sentenced. If the First Step Act does not

apply on remand for resentencing, one

defendant will be subject to a 25-year

mandatory minimum sentence; the defendant

who went to trial will not.

United States v. Uriarte, 2019 WL 1858516, at *4

(N.D. Ill. Apr. 25, 2019). There is no reason to believe

the First Step Act is designed to require the imposition

of “radically different sentences” in “roughly contemporaneous sentencing[s].” Dorsey, 567 U.S. at 277.

In the face of this unfairness, Judge Kethledge

shrugged: Congress’s decisions as to when sentencing

reforms apply, he said, “will always yield results that

seem arbitrary.” Pet. App. 13a. But we know that’s not

so. As explained above, the line Congress drew in the

applicability provisions—when properly understood—

is not arbitrary at all. It implements a carefully

considered balance between reform and finality.

4. Judge Kethledge advanced

arguments below, but both lack merit.

two

other

First, Judge Kethledge framed the interpretive

question of this case in light of a clear-statement rule

derived from the federal saving statute, 1 U.S.C. § 109.

Pet. App. 8a. Enacted to guard against implied repeals

caused by “legislative inadvertence,” Warden,

26

Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660

(1974), that statute provides that an amendment to a

sentencing law applies to pre-amendment offenses

only if Congress “expressly provide[s]” for such

coverage. 1 U.S.C. § 109; see also Dorsey, 567 U.S. at

272. Here, Sections 401(c) and 403(b) plainly satisfy

this condition: They govern sentencing for

“offense[s] . . . committed before the date of

enactment.” FSA §§ 401(c), 403(b). Determining which

pre-Act offenses are subject to Section 403 is thus

nothing more than an ordinary question of statutory

interpretation.

Even if the saving statute were relevant not just

to whether the Act applies to pre-Act conduct but to

exactly when it applies to such conduct, it would not

matter. Though the saving statute says “expressly

provide,” 1 U.S.C. § 109, this Court “has long

recognized” that the statute “creates what is in effect

a less demanding interpretive requirement.” Dorsey,

567 U.S. at 273-74. Because “one Congress cannot bind

a later Congress,” this Court requires only a “fair

implication” to satisfy the saving statute. Id. at 274.

For all of the reasons stated above, there is at least a

fair implication here that the Act applies to defendants

in Mr. Carpenter’s situation.

Second, Judge Kethledge lamented that “the

judiciary was largely denied any role in determining”

the length of Mr. Carpenter’s sentence. Pet. App. 13a.

On the contrary, the judiciary is the lone branch of

government standing in the way of a fair sentence

here.

Congress put provisions into the Act to maximize

the applicability of its sentencing reforms without

disrupting finality. Indeed, the Act’s co-sponsors have

27

confirmed that they “tailor[ed] the language” in

Sections 401(c) and 403(b) to apply to “pre-Act

offenders” whose “original sentences are vacated as

unlawful for other reasons.” Amicus Brief of U.S.

Senators Durbin, Grassley, and Booker at 11, United

States v. Mapuatuli, No. 19-10233 (9th Cir. May 12,

2020). The Executive Branch now agrees that the Act

applies in this context. Pet. App. 19a. Other courts of

appeals have reached the same conclusion. Because of

the Sixth Circuit’s intransigence, however, it now falls

to this Court to give the Act its proper reach.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Harold Gurewitz

GUREWITZ & RABEN, PLC

333 W. Fort Street

Suite 1400

Detroit, MI 48226

November 15, 2023

Jeffrey L. Fisher

Counsel of Record

Pamela S. Karlan

Easha Anand

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu