Petition for Writ of Certiorari — Michael Medina, Petitioner v. United States

Supreme Court briefJul 2, 2024

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In the Supreme Court of the United States

MICHAEL MEDINA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Lisa Rasmussen Hoing

GODDARD & HOING, P.C.

1801 Williams Drive

Georgetown, Texas 78628

(512) 863-2813

lrh@goddardhoing.com

Counsel for Petitioner

No.

In the Supreme Court of the United States

October Term, 2024

MICHAEL MEDINA, Petitioner,

United States of America

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner Michael Medina, by and through his undersigned attorney,

and pursuant to Rule 39.1, Supreme Court Rules, and Title 18, United

States Code, § 3006A(d)(7), respectfully moves this Honorable Court for

leave to proceed in forma pauperis, and for leave to file the attached

Petition for Writ of Certiorari to the United States Court of Appeals for

the Fifth Circuit without prepayment of fees.

Petitioner was represented by appointed counsel under the Criminal

Justice Act of 1964, as amended, in the district court and the court of

appeals. Leave to proceed in forma pauperis was never sought in any

other court. Appointment is attached to this Motion.

Respectfully submitted.

s/ Lisa Rasmussen Hoing

LISA RASMUSSEN HOING

GODDARD & HOING, P.C.

1801 Williams Drive

Georgetown, Texas 78628

(512) 863-2813

(512) 582-8608 (Fax)

Counsel of Record for Petitioner

DATED: June 28, 2024.

Case 1:05-cr-00039-LY Document 315 Filed 04/13/22 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA,

Plaintiff

MICHAEL MEDINA (1),

Defendant

Case No. 1:05-cr-00039-LY-1

ORDER

Now before the Court is Defendant Michael Medina’s Motion to Appoint Appellate Counsel,

contained within his Notice of Appeal filed March 10, 2022 (Dkt. 311). The District Court referred

the Motion to the undersigned Magistrate Judge on April 12, 2022. Dkt. 314.

The Amended Judgment in a Criminal Case was filed on March 4, 2022, and Defendant has

filed a notice of appeal to the United States Court of Appeals for the Fifth Circuit. Dkts. 309, 311.

Defendant has been detained since his arrest on October 29, 2004, and is serving a total term of

imprisonment of 480 months. The Court finds that Defendant is financially unable to employ

appellate counsel, and that the interests of justice require that counsel be appointed to represent

him on appeal.

IT IS THEREFORE ORDERED that Defendant Michael Medina’s Motion to Appoint

Appellate Counsel (Dkt. 311) is GRANTED. Daniel H. Wannamaker is hereby WITHDRAWN

and Lisa Rasmussen Hoing #24061028 is APPOINTED as Defendant’s counsel of record on

appeal.

SIGNED on April 13, 2022.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

QUESTION PRESENTED

The First Step Act (FSA) significantly reduced the

mandatory minimum sentences for several federal drug

and firearm offenses. First Step Act of 2018, Pub. L. No.

115-391, §§ 401, 403, 132 Stat. 5194, 5220-5222. Sections

401 and 403 apply to offenses committed after the FSA’s

enactment on December 21, 2018, and to “any offense that

was committed before the date of enactment * * * if a

sentence for the offense has not been imposed as of such

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

There is an acknowledged split between the Third,

Seventh, and Ninth Circuits and the Fifth and Sixth

Circuits. The Third Seventh and Ninth Circuits have

determined sections 401(c) and 403(b) of the FSA apply to

a post-Act sentencing when the sentence was vacated preenactment.

The Fifth and Sixth Circuits have determined 401(c)

and 403(b) of the FSA do not apply to a post-Act sentence

when that sentence is vacated pre-enactment.

The question is presented accordingly: Whether the

First Step Act’s sentencing reduction provisions apply to a

defendant initially sentenced prior to the FSA’s enactment;

whose sentence was then vacated by the trial Court and

resentenced after the enactment of the FSA.

RELATED PROCEEDINGS

United States District Court (W.D. Tex.):

•

United States v. Medina, No. 1:05-cr-00039-LY

(Oct. 14, 2005) (Judgment and Sentence)

Medina v. United States, No. 1:16-CV720-SS (July 6, 2020) (Order

Dismissing Motion to Vacate (2255) as

superseded by Amended Motion to

Vacate; Order Granting in Part and

Denying in Part)

•

Medina v. United States, No. 1:16-CV720-SS (Mar. 4, 2022) (Resentence)

United States v. Medina, No. 1:05-CR00039-LY (March 10, 2022) (Notice of

Appeal from the United States District

Court for the Western District of

Texas)

United States Court of Appeal (5th Cir.):

•

Medina v. United States, No. 22-50183

(March 10, 2022) (Appeal from the

United States District Court for the

Western District of Texas USDC No.

1:05-CR-39-1)

Medina v. United States, No. 22-50183

(Apr. 25, 2023) (Order denying

Appellee’s Unopposed Motion to

Remand Case to District Court for

Resentence)

Medina v. United States, No. 22-50183

(Dec. 20, 2023) (Letter of Advisement:

Requesting placement in abeyance

pending the issuance of judgment in

22-10265 USA v. Duffey)

Medina v. United States No. 22-50183

(Apr. 23, 2024) (Judgment denying

relief)

iii

TABLE OF CONTENTS

Question Presented .............................................................. i

Related Proceedings ............................................................. i

Table of Contents .............................................................. iii

Table of Authorities............................................................ iv

Introduction ......................................................................... 1

Opinions Below .................................................................... 1

Jurisdiction .......................................................................... 2

Statutory Provisions Involved ............................................ 2

Statement ............................................................................ 3

A. Legal Background...................................................... 3

B. Factual and Procedural Background ........................ 4

Reasons for Granting the Petition ...................................... 8

A. The Split in Authority ............................................. 9

B. The Argument ........................................................ 11

C. Congressional Intent .............................................. 14

D. Finality ................................................................... 15

E. Disparity Among Sentences................................... 17

F. Sentencing Error was Plain Error ......................... 18

G. Abeyance ................................................................ 21

Conclusion ......................................................................... 21

Appendix A – Court of appeals decision .......................................1a

Appendix B – District court amended judgment ........................... 7a

Appendix C – Statutory excerpt ................................................... 14a

Appendix D – United States unopposed dispositive motion....... 19a

TABLE OF AUTHORITIES

Cases

Astoria Federal Savings & Loan Ass’n v. Solimino, 501

U.S. 104 (1991) .................................................................. 13

Bailey v. United States, 516 U.S. 137 (1995) .................... 20

Bond v. United States, 572 U.S. 884 (2014) ............... 13, 17

Carpenter v. United States (No. 23-531) ................... 1, 8, 22

Comcast Corp. v. Nat’l Ass’n of African American Owned

Media, 140 S.Ct. 1009 (2020) ............................................ 17

Davis v. Michigan Department of Treasury, 489 U.S. 803

(1989) ................................................................................. 14

Deal v. United States, 508 U.S. 129 (1993) ........................ 3

Dorsey v. United States, 567 U.S. 260 (2012) .............. 17-18

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120

(2000) ................................................................................. 14

Green v. McCarter, 42 S.E 157 (S.C. 1902)....................... 16

Henderson v. United States, 568 U.S. 266 (2013) ....... 19-20

In Re Rochester Sanitarium & Baths Co., 222 F.22 (2d

Cir. 1915) ........................................................................... 17

Lockwood v. Jones, 7 Conn. 431 (1829) ............................ 16

Meyer v. Holley, 537 U.S. 280 (2003) ................................ 17

Molina-Martinez v. United States, 578 U.S. 189 (2016) .. 19

North Carolina v. Pearce, 395 U.S. 711 (1969) ................ 12

Pepper v. United States, 562 U.S. 476 (2011) ........ 12-13, 16

Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018) . 19

Russello v. United States, 464 U.S. 16 (1983) .................. 14

Sessions v. Dimaya, 138 S. Ct. 1204 (2018)........................ 5

Smith v. Berryhill, 139 S. Ct. 1765 (2019) ....................... 14

Tony R. Hewitt, Petitioner v. United States (22-10265)

....................................................................1, 8-10, 13, 21-22

United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah

2004)..................................................................................... 3

United States v. Ayres, 76 U.S. 608 (1869) ....................... 12

United States v. Bethea, 841 F. App’x 544 (4th Cir. 2021)

................................................................................... 4, 10-11

United States v. Carpenter, 2023 WL 3200321 (6th Cir.

2023)..................................................................................... 9

United States v. Carpenter, 80 F.4th 790 (6th Cir. 2023)

.............................................................................................. 9

United States v. Davis, 139 S. Ct. 2319 (2019)......... 4, 6, 22

United States v. Duffey, 456 F. App’x 434 (5th Cir. 2012)

....................................................................................... 1, 7-9

United States v. Fields, 777 F.3d 799 (5th Cir. 2015) ....... 19

United States v. Figueroa, 530 F. Supp. 3d 437 (S.D.N.Y.

2021)................................................................................... 11

United States v. Henry, 983 F.3d 214 (6th Cir. 2020) ..... 3-4

United States v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y.

2014)..................................................................................... 3

United States v. Hope, 545 F.3d 293 (5th Cir. 2008) ......... 21

United States v. Hull, 160 F. 3d 265 (5th Cir. 1998)......... 20

United States v. Irons, 31 F.4th 702 (4th Cir. 2022) .......... 20

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

......................................................................................... 9-10

United States v. Leonard, 157 F.3d 343 (5th Cir. 1998) ... 21

United States v. Merrell, 37 F.4th 571 (9th Cir. 2022)

............................................................................ 9, 11, 16, 18

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

............................................................................... 4, 9-12, 16

United States v. Moore, 928 F. 2d 654 (5th Cir. 1991) ...... 17

United States v. Nix, 2023 WL 4457894 (W.D.N.Y. 2023)

............................................................................................ 11

United States v. Olano, 507 U.S. 725 (1993) .................... 19

United States v. Stinson, 97 F.3d 466 (11th Cir. 1996) ... 15

United States v. Taylor, 596 U.S. 845 (2022) ................... 21

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

...................................................................................... 10, 16

United States v Voris, 964 F.3d 864 (9th Cir. 2020) ......... 16

United States v. Walker, 830 F. App’x 12 (2d Cir. 2020)

............................................................................................ 11

Williams v. Floyd, 27 N.C. 649 (1845) .............................. 16

Statutes

18 U.S.C. § 924 .............................................................. 3, 20

18 U.S.C. § 3582 ................................................................ 13

18 U.S.C. § 3742 ................................................................ 13

28 U.S.C. § 1254 .................................................................. 2

First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.

5194 ................................................... 1-5, 7-11, 13-18, 21-22

Legislative Materials

vii

164 Cong. Rec. S7645 (daily ed. Dec. 17, 2018) ................ 14

164 Cong. Rec. S7774 (daily ed. Dec. 18, 2018) ................ 14

Hearing Before the Over Criminalization Task Force of

2014 of the H. Comm. on the Judiciary, 113th Cong.

(2014) (Hon. Irene M. Keeley, Judicial Conference of

the United States) ....................................................... 3

Senate Passes Landmark Criminal Justice Reform,

U.S. Senate Comm. On the Judiciary (Dec. 18, 2018)

...................................................................................... 3

Other Authorities

Amicus Br. for U.S. Sens. Durbin, Grassley, and Booker

1, United States v. Mapualtuli, No. 19-10233 (9th Cir.

May 12, 2020) ................................................................ 15

Ask the Editor: Past Perfect and Present Perfect Tenses,

Britannica Dictionary (accessed Mar. 7, 2024).............12

Human Rights Watch, An Offer You Can’t Refuse: How

US Federal Prosecutors Force Drug Defendants to

Plead Guilty (2013).............................................................3

Karen M. Ross, Essential Legal English in Context:

Understanding the Vocabulary of US Law and

Government (2019) .................................................... 12

The Chicago Manual of Style ¶ 5.132 (17th Ed. 2017)

..............................................................................................................................................11

U.S. Sentencing Commission, Mandatory Minimum

Penalties for Firearm Offenses in the Federal

Criminal Justice System (Mar. 2018) ......................... 3

U.S. Sentencing Commission, Primer: Drug Offenses

(2023) .........................................................................................21

viii

U.S. Sentencing Comm’n, QuickFacts: Federal

Offenders in Prison (2023) ........................................ 21

Vacate, Black’s Law Dictionary (11th ed. 2019) ...... 12

INTRODUCTION

All the ingredients for a grant of certiorari are present

in this application for Petition of Writ of Certiorari. As the

United States Fifth Circuit Court of Appeals (hereinafter,

“Fifth Circuit”) recognized in its opinion, United States v.

Duffey, 456 F. App’x 434 (5th Cir. 2012), there is a hardened

conflict among the federal courts of appeals on the

question presented. Moreover—and as the government

agreed at every stage of appellate proceedings below—the

Fifth Circuit’s resolution of that question is wrong. The

issue is undeniably important and will continue to affect

countless criminal defendants moving forward. Although

the Court recently denied review of the question

presented here in Carpenter v. United States (No. 23-531),

it did so on the promise that the Sixth Circuit might

resolve the conflict on its own. Now that the Fifth Circuit

has joined the Sixth, that is no longer a possibility.

The issue before the Court must be examined under a

plain error standard since the district court’s error was

not properly preserved by Mr. Medina. There is evidence

the district court’s action was in plain error; nevertheless,

a nearly identical case out of the same Circuit is currently

pending on a petition for writ of certiorari before this

Court that requests relief on the same issue: Whether

sections 401(c) and 403(b) of the First Step Act,

(hereinafter “FSA”), apply to a post-Act sentencing after a

vacated pre-Act sentencing: Tony R. Hewitt, Petitioner v.

United States (22-10265). According to this Court’s docket,

Hewitt was distributed for Conference of June 20, 2024 on

June 4, 2024. Should the Court prefer to reserve of Mr.

Medina’s petition until it confers on Hewitt, Mr. Medina

would respectfully request this Court hold this petition in

abeyance until it determines whether to grant certiorari

on Hewitt.

OPINION BELOW

The Fifth Circuit’s opinion in this matter (App., infra,

1a-6a) is unpublished.

JURISDICTION

The Fifth Circuit entered judgment on April 3, 2024.

This Court has jurisdiction pursuant to 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the First Step Act of 2018,

Pub. L. No. 115-391, 132 Stat. 5194, are reproduced in the

appendix at pages 1a-16a.

STATEMENT

A. Legal Background

1. Section 924(c) of Title 18 of the U.S. Code

criminalizes the use, carrying, or possession of a firearm

in connection with a “crime of violence or drug trafficking

crime.” 18 U.S.C. § 924(c)(1)(A). A first conviction under

section 924(c) carries a mandatory sentence of at least five

years, and sentences for additional 924(c) convictions

carry a minimum sentence of 25 years. Id. § 924 (c)(1).

Section 924(c) convictions must run consecutively rather

than “concurrently with any other term of imprisonment.”

18 U.S.C. § 924(c)(1)(D)(ii).

The practice of imposing concurrent sentences under

section 924(c) is known as “stacking.” See U.S. Sentencing

Commission, Mandatory Minimum Penalties for Firearm

Offenses in the Federal Criminal Justice System 8 (Mar.

2018), perma.cc/JQG6-A22E. Stacking often yields

extremely long sentences, particularly because section

924(c)’s 25-year mandatory minimum applies even to

second and subsequent 924(c) convictions obtained in the

same criminal proceeding as a defendant’s initial 924(c)

conviction. See Deal v. United States, 508 U.S. 129, 134135 (1993). Prior to the FSA the result was de facto life

sentences for first-time section 924(c) offenders—a

practice widely criticized. See, e.g., Human Rights Watch,

An Offer You Can’t Refuse: How U.S. Federal Prosecutors

Force Drug Defendants to Plead Guilty (2013); Hearing

Before the Over-Criminalization Task Force of 2014 of the

H. Comm. on the Judiciary, 113th Cong. (2014) (Hon.

Irene M. Keeley, Judicial Conference of the United

States); United States v. Angelos, 345 F. Supp. 2d 1227,

1233 (D. Utah 2004); United States v. Holloway, 68 F.

Supp. 3d 310, 316-317 (E.D.N.Y. 2014).

2. In response to the extraordinarily harsh sentences

that section 924(c) imposed on first-time offenders, Congress enacted section 403 of the FSA. The FSA was the

“product of a remarkable bipartisan effort,” United States

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

“once-in-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).

Section 403 of the FSA was designed “to remedy past

overzealous use of mandatory minimum sentences.”

Henry, 983 F.3d at 218. The provision amends section

924(c) to clarify that the 25-year mandatory minimum

sentence applies only for violations that “occur[ ] after a

prior” section 924(c) conviction “has become final.” FSA

§ 403(a). In the absence of stacked 25-year sentences,

first-time offenders receive only section 924(c)’s

consecutive five-year minimum sentences—a difference of

two decades per count.

Section 403 “changed the law so that, going forward,

only a section 924(c) violation committed after a prior

section 924(c) conviction has become final will trigger the

25-year minimum.” United States v. Davis, 139 S. Ct.

2319, 2324 n.1 (2019) (cleaned up, emphasis added). But

Congress also specified that section 403’s reduced

sentences apply to “any offense that was committed before

the date of enactment if a sentence for the offense has not

been imposed as of such date of enactment.” FSA § 403(b).

Congress used identical language in section 401, which

reduces mandatory minimum sentences and sentencing

rules for various federal drug offenses. Like section

403(b), section 401(c) states that the provision’s reforms

“shall apply to any offense that was committed before the

date of enactment of [the FSA], if a sentence for the

offense has not been imposed as of such date of

enactment.” Because sections 401(c) and 403(b) use the

same language, the lower courts “have construed them to

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

App’x 544, 548 n.5 (4th Cir. 2021); accord United States

v. Mitchell, 38 F.4th 382, 389 (3d Cir. 2022).

B. Factual and Procedural Background

1. On April 5, 2005, the government filed an amended

superceding indictment charging Mr. Medina with Count

1s: Conspiracy to Interfere with Commerce by Robbery

under 41 U.S.C. 1951; Count 2s: Conspiracy to Interfere

with Commerce by Robbery under 18 U.S.C. 1951; Count

3s: Conspiracy to Interfere with Commerce by Robbery

under 18 U.S.C. 1951; Count 4s: Conspiracy to Interfere

with Commerce by Robbery under 18 U.S.C. 1951; Count

5s: Conspiracy to Interfere with Commerce by Robbery

under 18 U.S.C. 1951; Count 6s: Conspiracy to Use and

Carry a Firearm During a Crime of Violence under 18

U.S.C. 924(o); Count 7s: Using and Carrying a Firearm

During a Crime of Violence under 18 U.S.C.924(c); Count

8s: Using and Carrying a Firearm During a Crime of

Violence under 18 U.S.C. 924(c); Count 9s: Using and

Carrying a Firearm During a Crime of Violence under 18

U.S.C. 924(c); Count 10s: Using and Carrying a Firearm

During a Crime of Violence under 18 U.S.C. 924(c), and

Count 11s: Using and Carrying a Firearm During a Crime

of Violence under 18 U.S.C. 924(c).

2. On July 28, 2005, pursuant to a plea agreement, Mr.

Medina pleaded guilty to violating Count 1s: Conspiracy

to Interfere with Commerce by Robbery under 18 U.S.C.

1951; Count 6s: Conspiracy to Use and Carry a Firearm

During a Crime of Violence under18 U.S.C. 924(o); Count

9s: Using and Carrying a Firearm During a Crime of

Violence under 18 U.S.C. 924(c), and Count 11s: Using

and Carrying a Firearm During a Crime of Violence under

18 U.S.C. 924(c).

3. On October 14, 2005, a sentencing hearing was held

in the matter. Mr. Medina was sentenced by the trial

court to 188 months imprisonment on Count 1s; 188

months imprisonment on Count 6s (to run concurrently

with Count 1s); 84 months imprisonment on Count 9s,

and 300 months imprisonment on Count 11s (to run

consecutive to the term imposed in count 9s).

4. On June 23, 2016, Mr. Medina filed a Motion to

Vacate under 28 USC § 2255.

On June 29, 2016, Mr. Medina filed an Amended

Motion to Vacate.

5. On June 30, 2017, Mr. Medina filed a Motion to Stay

pending the U.S. Supreme Court’s decision in Sessions v.

Dimaya, 138 S. Ct. 1204 (2018). Mr. Medina’s motion was

granted by the trial court on July 7, 2017.

On March 14, 2019, Mr. Medina filed a Motion to Stay

pending the U.S. Supreme Court’s decision in U.S. v.

Davis, 139 S. Ct. 2319, 204 (2019). The motion was

subsequently granted by the trial court on March 15,

2019.

6. On July 6, 2020, the district court, under Mr.

Medina’s Motion to Vacate (2255), held Mr. Medina’s

conviction on Count 6s was unconstitutionally vague

under Davis, vacated Count 6s, and set Mr. Medina’s case

for sentencing on Counts 1s, 9s and 11s.

On August 27, 2021, Mr. Medina’s Presentence Report

and an Addendum to the Presentence Report was filed.

There is no indication in the criminal history section of

the Presentence Report, or the Addendum to the

Presentence Report, that a previous section 924(c)

conviction had become final prior to Mr. Medina’s

conviction for section 924(c). There is also no objection

from Mr. Medina regarding the presentence report failing

to apply section 403 of the FSA.

7. On March 4, 2022, the district court adopted the

presentence report:

“THE COURT: Thank you. The court has read and

reviewed the presentence investigation report by the

probation department that dates back to September 8th of

2005 with revisions on August the 4th, 2021, August the

27th, 2021, and September the 30th, 2021. I accept and

adopt that report and find that the correct total offense

level is 32, the defendant’s correct criminal history

category is four, and the correct guideline sentence

provides for a term of incarceration on Count 1s of 168

months to 210 months, a term of incarceration on Count

9s of 84 months, to run consecutive to all other counts,

and a term of incarceration on Count 11s of 300 months to

run consecutive to all other counts for a total sentence of

564 months.”

In summary, the district court resentenced Mr.

Medina on Counts 1s, 9s, and 11s and committed Mr.

Medina to the custody of the United States Bureau of

Prisons to be imprisoned for a term of 96 months as to

Counts, 84 months as to Count 9s, and 300 months

imprisonment on Count 11s. The trial court ordered the

terms imposed on Counts 1s and 11s to be served

consecutively and ordered the term imposed on Count 11s

to be served consecutively to the terms imposed on Counts

1s and 9s for a total imprisonment term of 480 months.

Mr. Medina made no objection during sentencing to the

district court’s failure to apply section 403 of the FSA.

8. On October 18, 2022, Mr. Medina filed his Appeal

with the Fifth Circuit Court of Appeals arguing that the

district court erred by failing to apply section 403 of the

FSA to his sentence.

9. On November 17, 2022, the government filed an

Unopposed

Dispositive

Motion

remand

for

Resentencing with the Fifth Circuit Court of Appeals.

(App., infra, 19a-24a). The government agreed with Mr.

Medina’s interpretation of the First Step Act and argued

the district court erred when it failed to apply section 403

to Mr. Medina’s sentence. The government and Mr.

Medina requested the Fifth Circuit to vacate his sentence

and remand it to the district court for resentencing.

On April 25, 2023, the United States Court of Appeals

for the Fifth Circuit denied the government’s unopposed

motion.

10. On May 25, 2023, the government filed Appellee’s

Brief with the United States Court of Appeals for the

Fifth Circuit.

On June 29, 2023, Mr. Medina filed a Reply Brief with

the United States Court of Appeals for the Fifth Circuit.

11. On April 3, 2024, in a per curiam, unpublished

opinion, the United States Court of Appeals for the Fifth

Circuit affirmed the district court’s sentence and held that

“… section 403 of the First Step Act of 2018 does not

(cleaned up) apply to a defendant’s resentencing when his

pre-enactment sentence was vacated post-enactment.”

In its unpublished opinion, the United States Court of

Appeals for the Fifth Circuit cited its ruling in United

States v. Duffey and repeated that, “section 403 of the

First Step Act does not ‘appl[y] to post-enactment

sentencings of defendants whose pre-enactment sentences

were vacated after the law was enacted.’” Citing Duffey at

92 F.4th 304, 307 (5th Cir. 2024) and petition for cert.

docketed sub nom, Hewitt v. United States (U.S.12 Mar.

2024) (No. 23-1002).

REASONS FOR GRANTING THE PETITION

1. Further review is manifestly warranted. The FSA’s

historic reforms “apply to any offense that was committed

before the date of enactment of [the] Act, if a sentence for

the offense has not been imposed as of such date of

enactment.” FSA §§ 401(c), 403(b). As the Fifth Circuit

recognized below, the federal courts of appeals are split

over whether that language covers defendants whose preFSA sentences have been judicially vacated and who are

then sentenced post-Act.

The Fifth Circuit’s resolution of the question is deeply

flawed—the text, context, and purpose of the FSA

establish that these provisions apply at post-enactment

sentencings. The difference attributable to that error in

this, and many other cases, is decades of unnecessary

imprisonment per defendant.

2. This Court recently denied review of this question in

Carpenter v. United States (No. 23-531). Although the

petition in that case was supported by two amicus briefs

explaining the surpassing importance of the question

presented, the government resisted certiorari on the

ground that it could resolve the split by acquiescing in

rehearing before the Sixth Circuit. But, with the Fifth

Circuit now joining the Sixth Circuit, that option is no

longer a viable path for resolving the disagreement among

the courts of appeal. Only this Court can restore

uniformity on the question presented.

3. In the proceedings below, Mr. Medina and the

government both argued that “the First Step Act’s reach

encompass[es] prior offenses for which a pre-Act sentence

is later vacated.” App., infra, 19a-24a. The Fifth Circuit

expressly rejected this rare concurrence between the

government and the defendant. It first dismissed Mr.

Medina’s argument from a procedural stance. “If he makes

that showing, we have discretion to correct the reversible

plain error, but generally should do so only if it

“seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings”. Id. (citation omitted).

App., infra, 5a.

Relying on Duffey, the Fifth Circuit issued its

opinion on the application of the FSA to Mr. Medina’s

case. “Because Medina’s pre-enactment sentence was

vacated after the First Step Act was enacted, section 403

does not apply to his post-enactment resentencing.”

App., infra, 6a.

A. The Split in Authority

1. In Hewitt, the Fifth Circuit relied upon the Sixth

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

522 (6th Cir. 2021), and United States v. Carpenter, 80

F.4th 790 (6th Cir. 2023) (Kethledge, J., concurring in the

denial of rehearing en banc). In Jackson, the Sixth Circuit

held the applicability of [FSA’s] section 403’s reformed

sentences turned exclusively on a defendant’s “status on

the day the First Step Act became law,” regardless of

whether a sentence then in place was subsequently

vacated. 995 F.3d at 523. In Carpenter, the panel

reiterated “the Act’s amendments did not apply to the

defendant’s resentencing when his first sentence was not

vacated until after the Act became law.” United States v.

Carpenter, 2023 WL 3200321 at *2 (6th Cir. 2023). 1

2. Contary to the Fifth and Sixth Circuits, the Third

and Ninth Circuits have held that once a defendant’s

sentence is vacated, it is “null and void” such that “a

sentence has not been imposed” for purposes of the FSA’s

provisions. United States v. Merrell, 37 F.4th 571, 575-576

(9th Cir. 2022) (interpreting section 403). Judicial

“vacatur of [an] original sentence washe[s] away that * * *

sentence, rendering it a nullity” ab initio, as though the

defendant “had no sentence as of the date of his

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

388-389 (3d Cir. 2022). According to the Third Circuit,

In Carpenter, the Sixth Circuit denied rehearing en banc over the

dissent of six judges. Carpenter, 80 F.4th 790.

neither section 403(b) or Section 401(c) “[prevents a

defendant] from receiving the Act’s benefits.” Ibid.

3. It should be noted that the split is deeper than the

2-2 division described above. In United States v. Uriarte,

975 F.3d 596 (7th Cir. 2020) (en banc), the en banc

Seventh Circuit held that section 403(b) applied to a

defendant whose sentence had been vacated prior to the

FSA’s enactment and who remained unsentenced as of the

enactment date. Id. at 601.

4. The Third Circuit, by contrast, “agree[d]” with the

Seventh Circuit’s holding in Uriarte “and join[ed] [it] in

construing [section] 403(b) broadly.” Mitchell, 38 F.4th at

387. This is a defensible interpretation of the Seventh

Circuit’s position—the opinion explained that “Congress

naturally wanted [section 403(b)] to reach all cases where

there was not already a sentence in place.” Uriarte, 975

F.3d at 605. The court reasoned that there are “no

countervailing considerations suggesting that Congress

wanted to deprive anyone without a set sentence of the

benefit of these new, preferred sentencing standards.”

Ibid. After the publishing of Uriarte, it is fair to expound

that the Seventh Circuit is now aligned with the Third

and Ninth Circuits.

5. In Hewitt, the Fifth Circuit cited and disagreed with

contrary cases from the Third, Fourth, Seventh, and

Ninth Circuits. Like the Third Circuit, the Fifth Circuit

observed that the language of sections 403(b) and 401(c)

has “vexed, and split,” the federal courts of appeals.

(quoting Mitchell, 38 F.4th at 386).

6. The Circuits have exhaustingly produced thorough

and fully-reasoned opinions examining the issue from

every possible angle, including numerous dissents and

concurrences. In the Sixth Circuit, the opinion in Jackson

drew a panel dissent, a four-judge concurrence in the

denial of rehearing, and two dissents from the denial of

rehearing with one opinion signed by six judges and

another by three.

The Fourth Circuit has reached the same conclusion in

an unpublished section 401(c) case. See United States v.

Bethea, 841 F. App’x 544, 549 (4th Cir. 2021) (“Bethea’s

sentence is best understood as ‘imposed’ for purposes of

the FSA on the date of its reimposition, because the

district court’s vacatur rendered his 2015 sentence a legal

nullity.”)

7. The Second Circuit has remanded, by unpublished

decision, at least one case in which “the government

agreed” that a defendant whose pre-FSA sentence was

vacated post-enactment “would benefit from the Act’s

reforms” on resentencing. United States v. Walker, 830 F.

App’x 12, 17 n.2 (2d Cir. 2020). District courts within the

Second Circuit have followed Walker’s footnote. 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); also Bethea, 841 F. App’x

at 556 (Quattlebaum, J., dissenting); Merrell, 37 F.4th at

578 (Boggs, J., dissenting); Mitchell, 38 F.4th at 392

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

These Circuit opinions are indicative of the broadbased disagreement among courts and judges across the

country. The conflict is entrenched and in need of this

Court’s resolution. The issues have been painfully

analyzed and the split deepen unless and until this Court

provides insight and direction.

B. The Argument

The FSA’s sentencing reduction provisions apply when

a pre-enactment sentence is vacated. As other Circuits,

and the office of the United States Attorney have

repeatedly recognized, the Fifth and Sixth Circuits’

interpretation of the FSA is in error. The text, context,

and purpose of the FSA establish that defendants facing

sentencing post-FSA, after a vacated pre-FSA sentence,

are intended to be protected by the remedies and relief

provided by the FSA.

Several features of the statutory text confirm this

interpretation. To begin, Congress phrased the FSA’s

applicability provision using the present-perfect tense—

the reforms apply to any offense for which a sentence “has

not been imposed.” See The Chicago Manual of Style ¶

5.132 (17th Ed. 2017) (explaining that the present-perfect

tense signifies an “act, state, or condition” that “is now

completed or continues up to the present”). Even when the

present-perfect tense refers to completed past acts, it does

so with the implication that the act has not since been

discredited or invalidated. See Ask the Editor: Past Perfect

and Present Perfect Tenses, Britannica Dictionary

(accessed Mar. 7, 2024), perma.cc/VRP3-6UBL.

It would be incoherent and grammatically incorrect to

say that a since-vacated sentence “has been imposed as of

2021” because, by the time of the statement, the sentence

is recognized as void. Any ordinary English speaker would

state, instead, that a since-vacated sentence “had been

imposed as of 2021,” so as to convey that the sentence’s

existence was in the past and no longer continuing. For

centuries, courts (including this one) have “uniformly

understood” that “a vacated order never happened.”

Mitchell, 38 F.4th at 392 (Bibas, J., concurring); United

States v. Ayres, 76 U.S. 608, 610 (1869) (holding that a

vacated judgment is “null and void, and the parties are

left in the same situation as if no trial had ever taken

place”). This Court has recently reiterated that vacatur

“wipe[s] the slate clean.” Pepper v. United States, 562 U.S.

476, 507 (2011).

This understanding of vacatur is confirmed by modern

legal dictionaries. See 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.”). A variety of legal doctrines

depend on this principle. Defendants may be retried after

vacatur of their original convictions without running afoul

of the Double Jeopardy Clause. See North Carolina v.

Pearce, 395 U.S. 711, 720-721 (1969). “[T]his ‘well

established part of our constitutional jurisprudence’”

depends on the “fiction” that a conviction, once vacated, is

“wholly nullified and the slate wiped clean.” Ibid.

The courts’ historic treatment of vacatur is relevant for

an additional reason: “[C]ommon law adjudicatory

principles” such as the effect of vacatur “apply except

[emphasis added] ‘when a statutory purpose to the

contrary is evident.’” Astoria Federal Savings & Loan

Association v. Solimino, 501 U.S. 104, 108 (1991).

Congress legislates against the backdrop of these

unexpressed presumptions and does not lightly or silently

displace them. Bond v. United States, 572 U.S. 884, 857

(2014).

Vacatur wipes the slate clean.

There is no evidence Congress intended the FSA to

contravene this basic common law rule; therefore, the

United States Fifth Circuit Court of Appeal’s reliance on

18 U.S.C. § 3742(g) for a contrary conclusion, in Hewitt, is

error. 18 U.S.C. § 3742(g) specifies that a district court on

resentencing after an appeal shall “apply the guidelines *

* * that were in effect on the date of the previous

sentencing of the defendant prior to appeal.” 18 U.S.C. §

3742(g) is evidence that Congress knew how to use a

vacated sentence as a reference point for an exception to

the general rule. In the absence of such an express

direction, however, the general rule governs—and nothing

in the language of the FSA implies that Congress sought

to withhold its reforms for defendants being sentenced

post-vacatur.

A better analogy is 18 U.S.C. § 3582(c). 18 U.S.C. §

3582(c) addresses the finality of imposed sentences. It

provides that a court “may not modify a term of

imprisonment once it has been imposed;” but, this Court

has held that section 3582(c)’s language does not preclude

deviation from a previous sentence that has been

vacated—in that circumstance, sentencing authority

remains plenary. Pepper, 562 U.S. at 507. The same

interpretation should apply to the words “has * * * been

imposed” in the FSA.

Accordingly, Congress keyed FSA sections 401 and 403

to the imposition of “a” sentence. Congress’s use of the

indefinite article stands in contrast to its use of the word

“any” used earlier in the same sentence relating to the

phrase “any offense * * * committed before the date of

enactment of this Act.” Ibid. It is well established that

“Congress’ use of the word ‘any’ suggests an intent to use

that term ‘expansively.’” Smith v. Berryhill, 139 S. Ct.

1765, 1774 (2019) (cleaned up). And where Congress uses

different language throughout a statute, this Court has

instructed that those differences should be understood

and respected. See, e.g., Russello v. United States, 464

U.S. 16, 23 (1983). The contrasting use of “a” and “any”

reveals Congress intended the set of relevant sentences

for determining the FSA’s applicability should be

construed more narrowly than the set of offenses.

The text of the FSA makes clear that its reforms apply

to post-vacatur sentences of pre-Act offenders, regardless

of when the original sentence was vacated. It is a

“fundamental canon of statutory construction that the

words of a statute 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. Michigan Department of

Treasury, 489 U.S. 803, 809 (1989)). The FSA’s context

and purpose underscore the point that Congress’s chosen

words extend the FSA’s sentencing reform to all

defendants upon sentencing post-vacatur.

C. Congressional Intent

The First Step Act was the result of an “extraordinary

political coalition.” 164 Cong. Rec. S7645 (daily ed.

Dec.17, 2018) (Sen. Durbin). Though broad in scope, its

“most important reforms” were its “changes to mandatory

minimums.” Id. at S7748 (daily ed. Dec. 18, 2018) (Sen.

Klobuchar). Moved by repeated examples of the draconian

effects of “stacking” section 924(c) convictions, it was a

principal goal of Congress to ensure that “enhancements

for repeat offenses apply only to true repeat offenders.” Id.

at S7774 (daily ed. Dec. 18, 2018) (Sen. Cardin).

In determining the sweep of its reforms, Congress

sensibly struck a balance between the widespread benefits of the FSA and the finality of criminal sentences. Sections 403(b) and 401(c) were drafted to effectuate this

balance. The FSA does not displace existing sentences or

allow for the reopening of a case based on its reforms. It

merely allows application of the new, shorter mandatory

minimum sentences when a defendant has no existing

sentence, whether upon

resentencing post vacation.

original

sentencing

There can be little doubt of Congress’s intent for these

provisions of the FSA. In an amicus brief filed in the

Ninth Circuit, Senators Durbin, Grassley, and Booker

(described as “the lead sponsors” of the Act) expressed

their interest in “ensuring that the First Step Act’s terms

are interpreted and applied in a manner consistent with

their intent.” Amicus Br. for U.S. Sens. Durbin, Grassley,

and Booker 1, United States v. Mapuatuli, No. 19-10233

(9th Cir. May 12, 2020). The senators explained, “[T]he

language Congress chose effectuates its intent to allow

pre-Act offenders, whose sentences are vacated, to benefit

from the Act’s ameliorative provisions at resentencing.”

Id. at 2-3. The amicus brief clarified that “Congress

intended for Section 401,” whose language is identical to

section 403, “to apply to pre-Act offenders who are not

subject to a sentence for their offense, including those

individuals whose original sentence was vacated as

unlawful for other reasons.” Id. at 11.

The senators explained that “[i]n selecting text to meet

this objective,” they “relied on the settled principle that

‘when a criminal sentence is vacated, it becomes void in

its entirety.’” Ibid. (quoting United States v. Stinson, 97

F.3d 466, 469 (11th Cir. 1996)). “The First Step Act was

enacted on the background of, and is therefore consistent

with, these settled legal principles, and consequently

treats defendants whose prior sentences were vacated no

differently from individuals being sentenced for the first

time.” Id. at 14.

Congress made the Section 403 amendment applicable

“to any offense that was committed before the date of

enactment if a sentence for the offense has not been

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

§ 403(b), 132 Stat. 5222. The text, context, and purpose of

the provision compel the conclusion that a sentence has

not been imposed as of the date of enactment.

D. Finality

Congress preserved finality concerns by declining to

disturb previously imposed sentences, see United States v.

Voris, 964 F.3d 864, 875 (9th Cir. 2020), but it did not

require sentencing courts to continue imposing mandatory

minimum sentences that the legislature has already

deemed to be unfair and unwarranted. The contrary

view—i.e., treating the historical fact of a prior sentence

as negating the application of section 403—is in tension

with the uniform recognition by the courts of appeals that

when a conviction is vacated before the enactment of the

First Step Act, both section 403, and the identically

worded retroactivity provision in section 401 apply to a

post-Act sentence. See, e.g., United States v. Uriarte, 975

F.3d 596 (7th Cir. 2020) (en banc).

The same is true when a conviction is vacated after the

enactment of the First Step Act. In both instances, as a

historical matter, a sentence had been imposed as of the

date of the First Step Act, but because the defendant’s

sentence has been wiped out and he must be resentenced,

a sentence has not been imposed within the meaning of

Section 403. As the court explained in United States v.

Merrell, 37 F.4th 571, 576 (9th Cir. 2022), “vacatur of the

prior sentences” after the First Step Act’s enactment

“‘wiped the slate clean,’” id. at 576 (quoting Pepper v.

United States, 562 U.S. 476, 507 (2011)), meaning that a

sentence has not been imposed “for purposes of § 403(b)”

Id. See also, United States v. Mitchell, 38 F.4th 382, 392

(3d Cir. 2022) (Bibas, J., concurring). “Historical

treatment” and “modern precedent reveal that vacatur

makes a sentence void from the start.” Merrell at 576. As

Judge Bibas explained, American cases dating from early

in the nineteenth century and continuing into the

twentieth century uniformly treated vacatur as placing

the parties back in the state they occupied before the

entry of the erroneous judgment. Id. (citing, e.g.,

Lockwood v. Jones, 7 Conn. 431, 436 (1829); Williams v.

Floyd, 27 N.C. 649, 656 (1845); Green v. McCarter, 42 S.

E. 157, 158 (S.C. 1902)).

“[T]he general rule” is “that when a court strikes out

its own order, it is the same as if such order had never

existed.” Id. (quoting In re Rochester Sanitarium & Baths

Co., 222 F. 22, 26 (2d Cir. 1915) (brackets and internal

quotation marks omitted). See United States v. Moore, 928

F.2d 654, 656 (5th Cir. 1991) (mandate vacating the

defendant’s previous sentence “rendered [his] sentence

null and void”). Congress legislates against these

background rules and presumptively relies on them in

framing its commands. See, e.g., Bond v. United States,

572 U.S. 844, 857 (2014) (“Part of a fair reading of

statutory text is recognizing that Congress legislates

against

the

backdrop

certain

unexpressed

presumptions.”); Comcast Corp. v. Nat’l Ass’n of AfricanAmerican Owned Media, 140 S. Ct. 1009, 1014 (2020)

(reading “background rule” of causation into statute). This

principle also applies to criminal sentencing statutes. In

such cases, courts “assume that Congress was aware of

relevant “background sentencing principles.” Dorsey v.

United States, 567 U.S. 260, 275 (2012), and “[w]here

Congress . . . has not expressed a contrary intent, the

Court has drawn an inference that it intended ordinary

rules to apply.” Meyer v. Holley, 537 U.S. 280, 287 (2003).

The answer is clear. The effect of vacatur—whether

before or after the enactment of the First Step Act—is the

same as if the prior conviction never existed. Accordingly,

a court imposing a sentence for a Section 924(c) offense

after enactment of the FSA, has a straightforward answer

to the retroactivity question under Section 403: A

sentence for the offense “has not been imposed” as of the

date of enactment because the vacatur wiped the slate

clean from the start. In other words, a sentence “is not

imposed” because when the sentence is vacated, the

action relates back to the initial sentencing. The historical

fact of the erroneous sentence cannot be erased, but the

legal effect of the vacatur is as if the sentence never

existed at all.

E. Disparity Among Sentences

Currently, in the Third, Seventh, and Ninth Circuits,

Mr. Medina’s 924(c) counts could provide possibly decades

of incarceration relief. There is simply no justification

that can allow sentences to vary so widely for conduct

committed at the same time based on nothing more than

which side of the Ohio River the defendant is tried.

The Fifth Circuit’s interpretation of Mr. Medina’s case

results in precisely the “kind of unfairness that modern

sentencing statutes typically seek to combat.” Dorsey v.

United States, 567 U.S. 260, 277 (2012); See also Senators’

Br. 17. Congressional intent was to avoid “radically

different sentences” for defendants “who each engaged in

the same criminal conduct * * * and were sentenced at the

same time.” Dorsey, 567 U.S. at 276-277. There is no

factual basis to support the argument that the language

and history of the FSA support a Congressional intention

to create such sentencing disparities. Under the Fifth

Circuit’s trail of opinions, there is no explanation

harmonizing its interpretation of section 403(b) with

Congress’s purpose and the general statutory scheme of

the FSA. When Congress amended Section 924(c) “to

reduce the severity of sentences for certain ‘stacked’

charges, [t]here is no reason to think that Congress

excluded from its remedy pre-Act offenders facing plenary

resentencing.” United States v. Merrell, 37 F.4th 571, 577

(9th Cir. 2022) (citation and internal quotation marks

omitted). “An unsentenced defendant and a defendant

whose sentence has been vacated both lack any sentence

until the ultimate sentencing day.” Id.

Congress evinced no indication it wished to perpetuate

an unduly harsh sentencing policy for defendants facing

resentencing that it repudiated for defendants facing

initial sentencing.

F. Sentencing Error Was Plain Error

The district court’s error in miscalculating Mr.

Medina’s sentencing guidelines is plain error. Once the

traditional tools of statutory construction are brought to

bear on the interpretation of Section 403(b), it is clear the

district court committed plain error by failing to apply

Section 403 of the First Step Act during its calculation of

the federal sentencing guidelines during Mr. Medina’s

sentencing on March 4, 2022.

Plain-error review has four prongs: First, there must

be error that has not been intentionally abandoned. The

only evidence before this Court is that Mr. Medina has

utilized all appellate rights to secure a decision on the

district court’s error.

Second, the error must be plain, or obvious.

Third, the error must affect the Appellant’s

substantial rights. The error in Mr. Medina’s case

deprived the district court of its statutory discretion to

impose a sentence less than a mandatory 25-year

consecutive sentence—a serious effect on substantial

rights. This Court has held that when a district court

relies on a higher sentencing guideline range than should

have been applied, the error affects substantial rights

even though the range is advisory and the actual sentence

fell within the correct range. Molina-Martinez v. United

States, 578 U.S. 189 (2016). Nothing in the record

suggests the sentencing court would have imposed the

same severe sentence absent its belief that the 25-year

consecutive term was mandatory.

Finally, the error must seriously affect the fairness,

integrity, or public reputation of judicial proceedings.

United States v. Olano, 507 U.S. 725, 732-737 (1993); see

also Molina-Martinez v. United States, 578 U.S. 189, 194

(2016); Henderson v. United States, 568 U.S. 266, 278-279

(2013); United States v. Fields, 777 F.3d 799, 802 (5th Cir.

2015). In Mr. Medina’s case, prejudicial error satisfies the

fourth prong of plain-error review because it seriously

affected the fairness, integrity, and public reputation of

judicial proceedings. See Rosales-Mireles v. United States,

138 S. Ct. 1897, 1903 (2018) (miscalculation of guidelines

range that was plain and affected the defendant’s

substantial rights would ordinarily satisfy the fourth

prong of plain-error review). “The risk of unnecessary

deprivation of liberty particularly undermines the

fairness, integrity, or public reputation of judicial

proceedings in the context of plain Guidelines error.” Id.

at 1908. The same is true, a fortiori, in a case like this.

The error made in Mr. Medina’s sentencing post-Act

was plain error. When interpretation accords with

statutory text, surrounding context, legislative purpose,

and background rules that establish the effect of vacatur,

all ambiguity is gone and the meaning of the statute is

clear. The Fourth Circuit applied this principle in United

States v. Irons, 31 F.4th 702, 713 (4th Cir. 2022), after

clarifying the meaning of Section 924(c), in accordance

with Congress’s amendment of that statute. See Bailey v.

United States, 516 U.S. 137 (1995). In Bailey, the

amended statute prohibited possession of a firearm “in

furtherance of” a drug trafficking crime. 18 U.S.C.

§ 924(c)(1)(A). The district court instructed the jury that

this requirement meant “there must be a connection

between the firearm” and the drug offense. United States

v. Irons, 31 F.4th at 711. The court of appeals found this

dilution of the “in furtherance of” requirement was error.

Id. at 711-713. Even though the court had never clarified

the statute, and the district court had reasonably relied

on an unpublished appellate decision to frame its

instruction, the court held the error was plain at the time

of review under Henderson. Id. at 713. The court

explained that, in hindsight, “our textual analysis is

sufficiently one-sided, and sufficiently dictates the

answer, that the district court’s error is ‘plain.’” Id.

In United States v. Hope, 545 F.3d 293, 296-297 (5th

Cir. 2008), the Fifth Circuit found that a statutory

holding may be found plain on appeal. The Court

determined that continuous possession of the same gun at

the time of arrest, and during a burglary the prior day,

could constitute only one violation of 18 U.S.C. § 922(g).

Although the Fifth Circuit had not addressed the issue

previously, other circuits had and uniformly agreed that

only one offense could be charged. Id. at 296. Under those

rulings and an analogous Fifth Circuit precedent, this

Court found the error was “plain and obvious.” Id. at 297.

This Court recognized that an extension of precedent

would not qualify as plain error, Id. at 297 n.17; but, for

that proposition, the court cited United States v. Hull, 160

F.3d 265, 272 (5th Cir. 1998)—a case in which prior

Circuit precedent supported the district court’s

instruction. 545 F.3d at 297 n.17. This Court has

recognized that statutory construction holdings can

constitute plain or obvious error once the meaning of the

statute has been unraveled on appeal. See, e.g., United

States v. Hope, 545 F.3d at 297; United States v. Leonard,

157 F.3d 343, 345-346 (5th Cir. 1998) (per curiam).

Mr. Medina agrees the error was not properly

preserved and that a plain error analysis. However, Mr.

Medina urges this Court, if necessary, to address the

merits of Hewitt, a case with the same issue Mr. Medina

pleads to this Court, and with a writ of certiorari

currently pending before this Court. The issue is the

same: Whether relief provided from FSA Section 403(b)

applies to the defendant’s punishment calculation on

section 924(c) counts when a prior sentence had been

vacated before the First Step Act’s enactment and

resentenced post-Act.

Almost 13% of individuals in federal custody are

serving sentences imposed for violations of section 924(c).

U.S. Sentencing Comm’n, QuickFacts: Federal Offenders

in Prison 1 (2023). Section 401’s reforms target “the most

commonly prosecuted drug offenses” in the country. U.S.

Sentencing Commission, Primer: Drug Offenses 1 (2023).

Because of the extraordinarily punitive sentences that

characterized pre-FSA mandatory minimums, “the

harshness of the old regime follows defendants who were

originally sentenced before the Act’s passage.” NACDL Br.

11.

G. Abeyance

In the interest of judicial efficiency, equity, and

fairness, Mr. Medina respectfully requests that this Court

hold this petition for writ of certiorari in abeyance and

resolve it in light of its decision in the pending Hewitt

cases. Alternatively, Mr. Medina asks this Court to, at a

minimum, to either consolidate the cases so that the legal

issues can be resolved efficiently and consistently, or find

that plain error occurred in Mr. Medina’s district court

sentencing.

CONCLUSION

This Court has issued at least two substantial opinions

construing section 924(c) in favor of Mr. Medina as early

as in the last few years. See United States v. Taylor, 596

U.S. 845 (2022) (holding that attempted Hobbs Act

robbery is not a crime of violence for purposes of section

924(c)); Davis, 139 S. Ct. 2319 (2019) (holding that section

924(c)’s “residual clause” is void for vagueness).

This split in circuit authority complicates consistent

sentencing with increasing frequency. Two amicus briefs

were filed in this Court in Carpenter (No. 23-531). In the

ACLU Brief, the ACLU, the Cato Institute, and the Due

Process Institute explained, “correctly applying the First

Step Act is extraordinarily important in light of the

magnitude of sentencing reductions for certain federal

firearm convictions.” ACLU Amicus Br., Carpenter v.

United States, No. 23-531, at 7 (Dec. 18, 2023)

(capitalization omitted).

Whether or not the FSA applies is often the “difference

between being sentenced to die in prison and serving a

long but survivable sentence.” Id. at 11. The brief for the

National Association of Criminal Defense Lawyers

(NACDL) highlighted that resolution of the section 403(b)

question also will settle the section 401(c) question.

NACDL Br., United States v. Carpenter, No. 23-531, at 6

(Dec. 18, 2023); accord ACLU Br. 12.

This litigation is spurred by the shifting landscape

surrounding this Court’s authority and direction

pertaining to FSA section 924(c). Without this Court’s

intervention and direction, countless criminal defendants

across the nation will continue to receive significant and

arbitrary differences in sentencings because of the current

split in authority.

Mr. Medina is respectfully requesting this Court to

find plain error and grant certiorari in this case to restore

uniformity on the question presented; or, strictly in the

alternative, hold this petition in abeyance, or consolidate

this case with, Hewitt for further inspection.

Respectfully submitted.

Lisa Rasmussen Hoing

GODDARD & HOING, P.C.

1801 Williams Drive

Georgetown, Texas 78628

(512) 863-2813

Counsel for Petitioner

June 28, 2024.

APPENDICES

TABLE OF CONTENTS

Appendix A – Court of appeals decision ..................... 1a

Appendix B – District court amended judgment...........7a

Appendix C – Statutory excerpt...................................14a

Appendix D – United States unopposed dispositive motion

.......................................................................................19a

FILED

April 25, 2024

United States Court of Appeals

Certified as a true copy and issued

for the Fifth Circuit

as the mandate on

Apr 25, 2024

CLERK, U.S. DISTRICT COURT

WESTERN DISTRICT OF TEXAS

___________

Attest:

Clerk, U.S. Court of Appeals, Fifth Circuit

United States Court of Appeals

Fifth Circuit

No. 22-50183

___________

FILED

April 3, 2024

United States of America,

Lyle W. Cayce

Clerk

Plaintiff—Appellee,

versus

Michael Medina,

Defendant—Appellant.

____________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:05-CR-39-1

____________________________

Before Jones, Barksdale, and Elrod, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on

file.

IT IS ORDERED and ADJUDGED that the judgment of the

District Court is AFFIRMED.

The judgment or mandate of this court shall issue 7 days after the time

to file a petition for rehearing expires, or 7 days after entry of an order denying

a timely petition for panel rehearing, petition for rehearing en banc, or motion

APPENDIX A

klw

BY: ________________________________

DEPUTY

No. 22-50183

for stay of mandate, whichever is later. See Fed. R. App. P. 41(b). The

court may shorten or extend the time by order. See 5th Cir. R. 41 I.O.P.

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 22-50183

____________

FILED

April 3, 2024

United States of America,

Lyle W. Cayce

Clerk

Plaintiff—Appellee,

versus

Michael Medina,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:05-CR-39-1

______________________________

Before Jones, Barksdale, and Elrod, Circuit Judges.

Per Curiam: *

At issue is whether section 403 of the First Step Act of 2018 applies

to a defendant’s resentencing when his pre-enactment sentence was vacated

post-enactment. It does not. AFFIRMED.

_____________________

This opinion is not designated for publication. See 5th Cir. R. 47.5.

No. 22-50183

Michael Medina pleaded guilty to, and was convicted of: conspiracy

to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951; conspiracy to

use and carry a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(o); and two counts of using, carrying, and brandishing a firearm during

a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

At the time of his first sentencing, § 924(c) required a seven-year

mandatory minimum sentence if a firearm was brandished; and, “[i]n the

case of a second or subsequent conviction under this subsection”, a 25-year

mandatory minimum sentence. 18 U.S.C. § 924(c)(1)(A), (C) (2004). The

25-year mandatory minimum applied even to instances where the “second or

subsequent conviction” was obtained in the same proceeding. E.g., Deal v.

United States, 508 U.S. 129, 132 (1993) (construing “second or subsequent”).

Therefore, the district court in 2005 imposed, inter alia, a seven-year

sentence for Medina’s first § 924(c) conviction, and a consecutive 25-year

sentence for his second.

In 2016, Medina moved to vacate his sentence under 28 U.S.C. § 2255

(providing remedies for sentences imposed in violation of law). But, before

the court ruled on the motion, the First Step Act was enacted, amending,

inter alia, § 924(c)(1)(C). See First Step Act of 2018, Pub. L. No. 115-391,

§ 403, 132 Stat. 5194, 5221–22 (2018) (codified at 18 U.S.C. § 924(c)). The

Act replaced the “second or subsequent conviction” language so that the

statute now reads: “In the case of a violation of this subsection that occurs after

a prior conviction under this subsection has become final, the person shall . . . be

sentenced to a term of imprisonment of not less than 25 years”. 18 U.S.C.

§ 924(c)(1)(C) (2023) (emphasis added). In other words, the amended

statute no longer requires the imposition of a 25-year mandatory minimum

No. 22-50183

sentence for a second § 924(c) conviction that, like Medina’s, was obtained

in the same proceeding. See id.

Regarding scope, the First Step Act explained that the amended

§ 924(c) “appl[ied] 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”. First Step Act of 2018 § 403(b).

After the amendment, the district court granted Medina’s motion in

part, vacating his § 924(o) conviction. Deciding full resentencing was

appropriate, the court also vacated Medina’s sentence. On resentencing,

however, and without mentioning the amended § 924(c), the court

reimposed the seven- and 25-year sentences for the two § 924(c) convictions.

II.

Medina contends the district court erred in not applying the amended

§ 924(c). Because he (as he also concedes) did not raise this issue in district

court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d

537, 546 (5th Cir. 2012). Under that standard, he must show a forfeited plain

error (clear-or-obvious error, rather than one subject to reasonable dispute)

that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135

(2009). If he makes that showing, we have discretion to correct the reversible

plain error, but generally should do so only if it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings”. Id. (citation

omitted).

During the pendency of this appeal, our court held in United States v.

Duffey that section 403 of the First Step Act does not “appl[y] to postenactment resentencings of defendants whose pre-enactment sentences were

vacated after the law was enacted”. 92 F.4th 304, 307 (5th Cir. 2024),

petition for cert. docketed sub nom. Hewitt v. United States (U.S. 12 Mar. 2024)

(No. 23-1002). Needless to say, and pursuant to our limited plain-error

No. 22-50183

review, the requisite clear-or-obvious error is lacking. Because Medina’s preenactment sentence was vacated after the First Step Act was enacted, section

403 does not apply to his post-enactment resentencing. See id.

III.

Accordingly, the sentence is AFFIRMED.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

FILED

MAR

4 2022

UNITED STATES OF AMERICA

MICHAEL MEDINA

Aliases. Michawl Frausto Medina, Mike Medina,

Gilbert Frausto, and Michael Medina

Case Number: 1:05-CR-00039-LY(1)

USM Number: 28858-180

Defendant.

AMENDED JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

The defendant, MICHAEL MEDINA, was represented by Daniel H. Wannamaker for re-sentencing.

The defendant pled guilty to Counts is of the Superseding Indictment on July 28, 2005. Accordingly, the defendant is

adjudged guilty of such Counts, involving the following offenses:

Title & Section

Nature of Offense

Offense Ended

Count

i8 U.S.C. § 1951 and 2

Conspiracy to Interfere with Commerce by

Robbeiy

06/30/2004

18 U.S.C. §

924 (c)(i) and 2

Using, Carrying and Brandishing a

Firearm during a Crime of Violence

03/30/2004

18 U.S.C. §

924 (c)(i) and 2

Using, Carrying and Brandishing a

Firearm during a Crime of Violence

09/9/2004

As pronounced on March 4, 2022, the defendant is sentenced as provided in pages 2 through 7 of this Judgment. The

sentence is imposed pursuant to the Sentencing Reform Act of 1984.

It is further ordered that the defendant shall notifj the United States Attorney for this district within 30 days of any change of

name, residence, or mailing address until all fmes, restitution, costs, and special assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must notiI,' the Court and United States Attorney of material changes in economic

circumstances.

Signed this

day of March, 2022.

ed States District Judge

APPENDIX B

22-50183.526

AO 245B (Rev. TXN 10/12) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 2 of 7

MICHAEL MEDINA

1 :05-CR-00039-LY(1)

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of

ninety six (96) months as to count is eighty four (84) months as to count 9s, three hundred (300) months as to count us, the terms

imposed on count is and ii s are to be served consecutiveiy and count us to be served consecutively to the term imposed on counts is

and 9s for a TOTAL TERM OF FOUR-HUNDRED AND EIGHTY (480) MONTHS.

The defendant shall remain in custody pending service of sentence.

The Court makes the following recommendations to the Bureau of Prisons:

To designate defendant to a federal facility near Austin, Texas in order that the defendant may be near family

members during the period of confinement.

If, for any reason, the Bureau of Prisons does not comply with any recommendation of this Court made in this Judgment and Sentence,

the Bureau of Prisons shall immediately notify the Court and any reason therefore.

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

22-50183.527

AO 245B (Rev. TXN 10/12) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 3 of 8

MICHAEL MEDINA

I :05-CR-00039-LY(1)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release a term of three (3) years as to count is, five (5)

years as to count 9s, and five (5) years as to count 11 s to run concurrently for a TOTAL TERM OF FIVE (5) YEARS.

While on supervised release the defendant shall comply with the mandatory, standard and if applicable, the special conditions

that have been adopted by this Court, and shall comply with the following additional conditions:

The defendant shall participate in a mental health treatment program and follow the rules and

regulations of that program. A probation officer, in consultation with the treatment provider, may

supervise participation in the program. The defendant shall pay the costs of such treatment to the extent

the defendant is financially able.

The defendant shall take all mental health medications that are prescribed by the treating physician who

is treating the defendant.

The defendant shall participate in a cognitive-behavioral treatment program and follow the rules and

regulations of that program. The probation officer will supervise the defendant's participation in the

program. Such programs may include group sessions led by a counselor or participation in a program

administered by the probation office. The defendant shall pay for the costs of the program to the extent

the defendant is financially able.

The defendant shall participate in a vocational services program and follow the rules and regulations of

that program. Such a program may include job readiness training and skills development training. The

defendant shall pay for the costs of the program to the extent the defendant is financially able.

The defendant shall participate in a substance abuse treatment program and follow the rules and

regulations of that program. The program may include testing and examination during and after

program completion to determine if the defendant has reverted to the use of drugs or alcohol. A

probation officer may supervise the participation in the program. The defendant shall pay the costs of

such treatment to the extent the defendant is financially able.

The defendant shall refrain from the use of alcohol and all other intoxicants during the term of

supervision.

The defendant shall submit his or her person, property, house, residence, office, vehicle, papers,

computers (as defined in 18 U.S.C. § 1030(e)(1)), and other electronic communications or data storage

devices or media, to a search conducted by a United States probation officer. Failure to submit to a

search may be grounds for revocation of release. The defendant shall warn any other occupants that the

premises may be subject to searches pursuant to this condition. A probation officer may conduct a search

under this condition when reasonable suspicion exists that the defendant has violated a condition of

supervision or that there has been another violation of the law. Any search shall be conducted at a

reasonable time and in a reasonable manner.

22-50183.528

AO 245B (Rev. TXN 10/12) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

10a

Judgment -- Page 4 of 7

MICHAEL MEDINA

1 :05-CR-00039-LY(1)

Mandatory Conditions:

CONDITIONS OF SUPERVISION

[1]

The defendant shall not commit another federal, state, or local crime during the term of supervision.

[2]

The defendant shall not unlawfully possess a controlled substance.

[3]

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test

within 15 days of release on probation or supervised release and at least two periodic drug tests thereafter (as determined

by the court), but the condition stated in this paragraph may be ameliorated or suspended by the court if the defendant's

presentence report or other reliable sentencing information indicates low risk of future substance abuse by the defendant.

[4]

The defendant shall cooperate in the collection of DNA as instructed by the probation officer, if the collection of such a

sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 1413 5a).

[5]

If applicable, the defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42

U.S.C. § 16901, et. seq.) as instructed by the probation officer, the Bureau of Prisons, or any state sex offender registration

agency in which the defendant resides, works, is a student, or was convicted of a qualifying offense.

[6]

If convicted of a domestic violence crime as defmed in 18 U.S.C. § 356 1(b), the defendant shall participate in an approved

[7]

If the judgment imposes a fme or restitution, it is a condition of supervision that the defendant pay in accordance with the

Schedule of Payments sheet of the judgment.

[8]

The defendant shall pay the assessment imposed in accordance with 18 U.S.C. § 3013.

[9]

The defendant shall notify the court of any material change in the defendant's economic circumstances that might affect the

defendant's ability to pay restitution, fines or special assessments.

program for domestic violence.

Standard Conditions:

[1]

The defendant shall report to the probation office in the federal judicial district where he or she is authorized to reside

within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different

probation office or within a different time frame.

[2]

After initially reporting to the probation office, the defendant will receive instructions from the court or the probation

officer about how and when to report to the probation officer, and the defendant shall report to the probation officer as

instructed.

[3]

The defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first

getting permission from the court or the probation officer.

[4]

The defendant shall answer truthfully the questions asked by the probation officer.

[5]

The defendant shall live at a place approved by the probation officer. If the defendant plans to change where he or she lives

or anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall 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, the defendant shall notify the probation officer within 72 hours of becoming aware of a

change or expected change

[6]

The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the

defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision

that are observed in plain view.

22-50183.529

AO 245B (Rev. TXN 10/12) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

11a

Judgment -- Page 5 of 7

MICHAEL MEDINA

1:05-CR-00039-LY(1)

[7]

The defendant shall work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer

excuses the defendant from doing so. If the defendant does not have full-time employment, he or she shall try to find fulltime employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change

where the defendant works or anything about his or her work (such as the position or job responsibilities), the defendant

shall 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, the defendant shall notify the probation officer within 72 hours

of becoming aware of a change or expected change.

[8]

The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the

defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with

that person without first getting the permission of the probation officer.

[9]

If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer

[10]

The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon

(i.e., anything that was designed, or was modified, for the specific purpose of causing bodily injury or death to another

person such as nunchakus or tasers).

[11]

The defendant shall 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 the defendant poses a risk to another person (including an organization), the

probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that

instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the

risk.

[13]

The defendant shall follow the instructions of the probation officer related to the conditions of supervision.

[14]

If the judgment imposes other criminal monetary penalties, it is a condition of supervision that the defendant pay such

penalties in accordance with the Schedule of Payments sheet of the judgment.

[15]

If the judgment imposes a fme, special assessment, restitution, or other criminal monetary penalties, it is a condition of

[16]

If the judgment imposes a fine, special assessment, restitution, or other criminal monetary penalties, it is a condition of

supervision that the defendant shall not incur any new credit charges or open additional lines of credit without the approval

of the probation officer, unless the defendant is in compliance with the payment schedule.

[17]

If the defendant is excluded, deported, or removed upon release on probation or supervised release, the term of supervision

shall be a non-reporting term of probation or supervised release. The defendant shall not illegally re-enter the United

States. If the defendant is released from confmement or not deported, or lawfully re-enters the United States during the

term of probation or supervised release, the defendant shall immediately report in person to the nearest U.S. Probation

within 72 hours.

supervision that the defendant shall provide the probation officer access to any requested fmancial information.

Office.

22-50183.530

12a

Judgment -- Page 6 of 7

AO 245B (Rev. TXN 10/12) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

MICHAEL MEDINA

I :05-CR-00039-LY(1)

CRIMINAL MONETARY PENALTIES/SCHEDULE

The defendant shall pay the following total criminal monetary penalties in accordance with the schedule of payments set

forth. Unless the Court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary

penalties is due during imprisonment. Criminal Monetary Penalties, except those payments made through Federal Bureau of Prisons'

Inmate Financial Responsibility Program, shall be paid through the Clerk, United States District Court, Attn: Mail Log, 501 West

Fifth Street, Suite 1100, Austin, TX, 78701 or online by Debit (credit cards not accepted) or ACH payment (direct from Checking or

Savings Account) through Pay.gov (link accessible on the landing page of the U.S. District Court's Website). Your mail-in or online

payment must include your case number in the exact format of DTXW1O5CR000039-OO1 to ensure proper application to your

criminal monetary penalty. The defendant shall receive credit for all payments previously made toward any criminal monetary

penalties imposed.

If the defendant is not now able to pay this indebtedness, the defendant shall cooperate fully with the office of the United

States Attorney, the Federal Bureau of Prisons andlor the United States Probation Office to make payment in full as soon as possible,

including during any period of incarceration. Any unpaid balance at the commencement of a term of probation or supervised release

shall be paid on a schedule of monthly installments to be established by the United States Probation office and approved by the Court.

Restitution

Fine

$.00

Assessment

$300.00

TOTALS

$22,181.38

SPECIAL ASSESSMENT

It is ordered that the defendant shall pay to the United States a special assessment of $300.00. Payment of this sum shall

begin immediately.

FINE

The Ime is waived because of the defendant's inability to pay.

RESTITUTION - JOINTLY AND SEVERALLY

The defendant shall pay restitution in the amount of $22,181.38 through the Clerk, U.S. District Court, for distribution to the

payees. Payment of this sum shall begin immediately. Defendant Michael Medina will owe the victims jointly and severally with codefendants Andrew Lee Frausto, Docket No. 1 :05-CR-039(2)LY and Joseph Anthony Lopez, Docket No. 1 :05-CR-039(3)LY. No

further payment shall be required after the sum of the amounts actually paid by the defendants/participants has fully covered all

compensable injuries.

The Court directs the United States Probation Office to provide personal identifier information of victims by submitting a

"reference list" under seal Pursuant to E-Government Act of 2002" to the District Clerk within ten (10) days after the criminal

Judgment has been entered.

Name of Payee

Amount of Restitution

American Management

P.O. Box 2020

Conway, Arkansas 72033

Claims Nos. AM3968 and AM4384

Policy No. CP5000006548

$3,297.00

Suba Inc. (Breadbasket)

Attention: Sufian Mohammad

1514 Holly Street

Austin, Texas 78702

$10,900.00

22-50183.531

AO 245B (Rev. TXN 10/12) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

13a

Judgment -- Page 7 of 7

MICHAEL MEDINA

1 :05-CR-00039-LY(1)

Chevron Food Mart

Attention: Vonda Wars

7110E. Ben White

Austin, Texas 78741

$407.92

Niki's Food Mart

$1,000.00

Muhammad Naveed Usman (Shop N Carry)

8514 5. Congress Avenue

Austin, Texas 78745

$6,336.46

Triple S. Petroleum

Attention: Bill McNamara

4911 E. 7th Street

Austin, Texas 78702

$240.00

TOTAL:

$22,181.38

Attention: Tariq Khan

3002 S. Congress Avenue

Austin, Texas 78704

The Court finds that the defendant does not have the ability to pay interest and will waive the interest requirement ii this case.

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 above. However, pursuant to 18 U.S.C. § 3664(i), all non-federal victims must be paid before the United States is paid.

If the fine is not paid, the court may sentence the defendant to any sentence which might have been originally imposed. See 18 U.S.C. §3614.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVIA 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.

Findings for the total amount of losses are required under chapters i 09A, 110, 11 OA, and 11 3A of Title 18 for offenses committed on or after September 13, 1994,

but before April 23, 1996.

22-50183.532

14a

132 Stat. 5220

Public Law 115-391—Dec. 21, 2018

title iv—sentencing reform

Sec. 401. reduce and restrict enhanced sentencing for prior drug felonies.

(a) Controlled Substances Act Amendments.—

The Controlled Substances Act (21 U.S.C. 801 et seq.) is

amended—

(1) in section 102 (21 U.S.C. 802), by adding at the

end the following:

“(57) The term ʻserious drug felony’ means an offense described in section 924(e)(2) of title 18, United

States Code, for which—

“(A) the oﬀender served a term of imprisonment of more than 12 months; and

“(B) the oﬀender’s release from any term of imprisonment was within 15 years of the commencement of the instant oﬀense.

“(58) The term ʻserious violent felony’ means—

“(A) an oﬀense described in section 3559(c)(2)

of title 18, United States Code, for which the offender served a term of imprisonment of more than

12 months; and

“(B) any oﬀense that would be a felony violation of section 113 of title 18, United States Code,

if the oﬀense were committed in the special maritime and territorial jurisdiction of the United

States, for which the oﬀender served a term of imprisonment of more than 12 months.”; and

(2) in section 401(b)(1) (21 U.S.C. 841(b)(1))—

APPENDIX C

15a

(A) in subparagraph (A), in the matter following clause (viii)—

(i) by striking “If any person commits such

a violation after a prior conviction for a felony

drug oﬀense has become ﬁnal, such person

shall be sentenced to a term of imprisonment

which may not be less than 20 years” and inserting the following: “If any person commits

such a violation after a prior conviction for a serious drug felony or serious violent felony has

become ﬁnal, such person shall be sentenced to

a term of imprisonment of not less than 15

years”; and

(ii) by striking “after two or more prior convictions for a felony drug oﬀense have become

ﬁnal, such person shall be sentenced to a mandatory term of life imprisonment without release” and inserting the following: “after 2 or

more prior convictions for a serious drug felony

or serious violent felony have become ﬁnal,

such person shall be sentenced to a term of imprisonment of not less than 25 years”; and

(B) in subparagraph (B), in the matter following clause (viii), by striking “If any person commits such a violation after a prior conviction for a

felony drug oﬀense has become ﬁnal” and inserting the following: “If any person commits such a

violation after a prior conviction for a serious drug

felony or serious violent felony has become ﬁnal”.

(b) Controlled Substances Import and Export

Act Amendments.—Section 1010(b) of the Controlled

Substances Import and Export Act (21 U.S.C. 960(b)) is

amended—

16a

(1) in paragraph (1), in the matter following subparagraph (H), by striking “If any person commits

such a violation after a prior conviction for a felony

drug oﬀense has become ﬁnal, such person shall be

sentenced to a term of imprisonment of not less than

20 years” and inserting “If any person commits such

a violation after a prior conviction for a serious drug

felony or serious violent felony has become ﬁnal, such

person shall be sentenced to a term of imprisonment

of not less than 15 years”; and

(2) in paragraph (2), in the matter following subparagraph (H), by striking “felony drug oﬀense” and

inserting “serious drug felony or serious violent felony”.

(c) Applicability to Pending Cases.—This section, and the amendments made by this section, shall apply to any oﬀense that was committed before the date of

enactment of this Act, if a sentence for the oﬀense has not

been imposed as of such date of enactment.

Sec. 402. broadening of existing safety valve.

(a) AMENDMENTS.—Section 3553 of title 18, United

States Code, is amended—

(1) in subsection (f)—

(A) in the matter preceding paragraph (1)—

(i) by striking “or section 1010” and inserting “, section 1010”; and

(ii) by inserting “, or section 70503 or

70506 of title 46” after “963)”;

(B) by striking paragraph (1) and inserting the

following:

“(1) the defendant does not have—

“(A) more than 4 criminal history points, excluding any criminal history points resulting from

17a

a 1-point oﬀense, as determined under the sentencing guidelines;

“(B) a prior 3-point oﬀense, as determined under the sentencing guidelines; and

“(C) a prior 2-point violent oﬀense, as determined under the sentencing guidelines;”; and

“Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.”; and

(2) by adding at the end the following:

“(g) Definition of Violent Offense.—As used in

this section, the term ʻviolent oﬀense’ means a crime of

violence, as deﬁned in section 16, that is punishable by

imprisonment.”.

(b) Applicability.—The amendments made by this

section shall apply only to a conviction entered on or after

the date of enactment of this Act.

Sec. 403. clarification of section 924(c) of title

18, united states code.

(a) In General.—Section 924(c)(1)(C) of title 18,

United States Code, is amended, in the matter preceding

clause (i), by striking “second or subsequent conviction

under this subsection” and inserting “violation of this

subsection that occurs after a prior conviction under this

subsection has become ﬁnal”.

(b) Applicability to Pending Cases.—This section, and the amendments made by this section, shall apply to any oﬀense that was committed before the date of

enactment of this Act, if a sentence for the oﬀense has not

been imposed as of such date of enactment.

18a

Sec. 404. application of fair sentencing act.

(a) Definition of Covered Offense.—In this section, the term “covered oﬀense” means a violation of a

Federal criminal statute, the statutory penalties for which

were modiﬁed by section 2 or 3 of the Fair Sentencing Act

of 2010 (Public Law 111–220; 124 Stat. 2372), that was

committed before August 3, 2010.

(b) Defendants Previously Sentenced.—A court

that imposed a sentence for a covered oﬀense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose

a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat.

2372) were in eﬀect at the time the covered oﬀense was

committed.

made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3

of the Fair Sentencing Act of 2010 (Public Law 111–220;

124 Stat. 2372) or if a previous motion made under this

section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the

motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant

to this section.

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No. 22-50183

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MICHEAL MEDINA,

Defendant-Appellant.

UNITED STATES’ UNOPPOSED DISPOSITIVE MOTION TO

REMAND FOR RESENTENCING

The United States moves, without opposition, to dispositively

remand to the district court for resentencing in the above-entitled and

numbered cause, and for cause would show unto this Court the following:

In 2005, Appellant Michael MEDINA was convicted, upon his plea

of guilty, pursuant to a plea agreement, of conspiracy to interfere with

commerce by robbery under 18 U.S.C. § 1951 for which he was sentenced

to 188 months, conspiracy to use or carry a firearm during and in relation

to a crime of violence under 18 U.S.C. § 924(o) for which he was sentenced

to 188 months, and two counts of using, carrying or brandishing a firearm

APPENDIX D

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during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)

for which he was sentenced to the then-applicable minimum mandatory

terms of 84 months (7 years) and 300 months (25 years), respectively.

The sentences for the two conspiracies were ordered to run concurrently,

and the sentences for the remaining counts were ordered to run

consecutively to each other. On October 12, 2006, the Government filed

a motion to reduce sentence, as a result of Appellant’s substantial

assistance. The sentences for the two conspiracies were then reduced to

96 months each; however, the sentences for the remaining counts

remained the same.

Almost a decade later, in June of 2016, Appellant filed a motion and

then an amended motion to vacate sentence under 28 U.S.C. § 2255. On

July 20, 2020, the district court upheld Appellant’s convictions for the

Hobbs Act conspiracy and for the charges of brandishing a firearm during

and in relation to a crime of violence. Appellant’s conviction for

conspiring to use or carry a firearm during and in relation to a crime of

violence, under 18 U.S.C. § 924(o), was vacated. Upon resentencing, on

March 4, 2022, Appellant was again resentenced to 96 months on the

Hobbs Act conspiracy and seven (7) year and 25-year consecutive

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sentences for the two convictions for brandishing a firearm during and in

relation to a drug trafficking crime. He then filed a timely notice of

appeal.

On appeal, Appellant argues, for the first time, that the district court

erred by failing to consider the applicability, on resentencing after

vacatur of one count of conviction of Section 403 of the First Step Act of

2018,1 which amends the punishment provisions of 18 U.S.C. § 924(c) to

no longer require the imposition of a 25-year minimum mandatory

sentence for a second 924(c) unless the conviction for the first was final

before the commission of the second. It is well-settled that under Section

403, the 25-year minimum mandatory no longer applies to multiple

Section 924(c) convictions obtained in a single prosecution. These

changes to 924(c)’s sentencing structure, however, were not made

retroactive. The issue presented here is whether Section 403 should be

applied on resentencing, where a defendant’s previously imposed

sentence was vacated, even if the 924(c) convictions were not disturbed

by the vacatur. As Appellant concedes, this Court has not decided the

issue. Although the Government is confident that Appellant has not and

1 115 Pub.Law 391, 132 Stat. 5194, 2018 Enacted S. 756, 115 Enacted S. 756.

22a

cannot established plain error requiring relief on appeal, the Government

advises this Court that many, although not all, of the other circuits to

squarely consider the issue posed here (or similar issues), have ruled that

Section 403 should be applied in such a circumstance 2. The Department’s

position, at the time of Appellant’s resentencing, was that Section 403

should not apply in the circumstance before this Court; however, that

position has since been reexamined and has changed. The Government

has now concluded that the best reading of Section 403, considered in

light of the statutory text, context, and purpose, is that the amended

statutory penalties set forth in Section 403 apply at any sentencing that

takes place after the Act’s effective date, December 21, 2018. Accordingly,

it is the Government’s position that a defendant, like Appellant, on whom

a sentence is imposed for a relevant offense after that date even at a

These courts have determined that Section 403 and the identically worded retroactivity provision in

Section 401 of the Act apply to a defendant whose pre-Act sentence was vacated before the Act’s

enactment and who remained unsentenced on the date of enactment. See United States v. Henry, 983

F.3d 214, 222-24 (6th Cir. 2020) (Section 403); United States v. Uriarte, 975 F.3d 596, 601-05 (7th Cir.

2020) (en banc) (Section 403); United States v. Bethany, 975 F.3d 642, 649-50 (7th Cir. 2020) (Section

401). And a majority of the courts of appeals to consider the question have further determined that

Sections 401 and 403 also apply when a defendant’s pre-Act sentence is vacated after the Act’s

enactment. See United States v. Mitchell, 38 F.4th 382, 386-89 (3d Cir. 2022); United States v. Merrell,

37 F.4th 571, 575-78 (9th Cir. 2022); see also United States v. Bethea, 841 F. App’x 544, 548-53 (4th

Cir. 2021) (unpublished opinion). But see United States v. Jackson, 995 F.3d 522, 525-26 (6th Cir.

2021) (holding that Section 403 does not apply to post-enactment vacaturs).

23a

resentencing should receive the benefit of the Act’s reduced statutory

minimum sentences.

Accordingly, the Government moves here for resentencing in this

cause to permit the district court to consider the application of Section

403 to Appellant’s case and to determine sentence in light thereof and

after consideration of the applicable guideline range and the factors

enumerated in 18 U.S.C. § 3553(a).

Based on the foregoing, the Government agrees that this Court

should remand this case for resentencing.

Respectfully submitted,

Ashley C. Hoff

United States Attorney

By:

/s/ Margaret F. Leachman

Margaret F. Leachman

Assistant United States Attorney

Certificate of Conference

Appellant’s counsel, Lisa Rasmussen Hoing, was contacted via

electronic mail, and does not oppose this motion.

/s/ Margaret F. Leachman

Margaret F. Leachman

Assistant United States Attorney

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Certificate of Service

On November 17, 2022, I electronically filed this document with the

Fifth Circuit Court of Appeals using the CM/ECF system, which will

deliver a copy of this document to Appellant’s counsel.

/s/ Margaret F. Leachman

Margaret F. Leachman

Assistant United States Attorney

Certificate of Compliance

I certify that:

1. This document complies with the word limit of Fed. R. App. P.

27(d)(2)(A) and is less than 20 pages in length, because, excluding the

parts of the document exempted by Fed. R. App. P. 32(f), this document

contains 925 words.

2. This document complies with the typeface requirements of Fed.

R. App. P. 27(d)(1)(E) and 32(a)(5) and the type-style requirements of

Fed. R. App. P. 27(d)(1)(E) and 32(a)(6) because this document has been

prepared in a proportionally spaced typeface using Microsoft Word 2016

in 14-point Century Schoolbook font.

/s/ Margaret F. Leachman

Margaret F. Leachman

Assistant United States Attorney

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.