United States v. Carpenter

80 F.4th 790

UNITED STATES of America, Plaintiff-Appellee, v. TIMOTHY IVORY CARPENTER, Defendant-Appellant.

No. 22-1198

United States Court of Appeals, Sixth Circuit

Decided and Filed: September 18, 2023

United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cr-20218-4—Sean F. Cox, District Judge.

ON PETITION FOR REHEARING EN BANC: Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, Jeffrey L. Fisher, O'MELVENY & MYERS LLP, Menlo Park, California, for Appellant. ON RESPONSE: Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Blake S. Hatlem, Andrew Picek, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.

The court issued an order. KETHLEDGE, J. (pp. 790-93), delivered a separate opinion, in which SUTTON, C.J., and THAPAR and BUSH, JJ., joined, concurring in the denial of the petition for rehearing en banc. GRIFFIN, J. (pp. 793-95), delivered a separate opinion, in which MOORE and STRANCH, JJ., joined, dissenting from the denial of the petition for rehearing en banc. BLOOMEKATZ, J. (pp. 795-97), delivered a separate opinion, in which MOORE, CLAY, GRIFFIN, STRANCH and MATHIS, JJ., joined, dissenting from the denial of the petition for rehearing en banc.

ORDER

On Petition for Rehearing En Banc.

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court.^* Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.

CONCURRENCE

KETHLEDGE, Circuit Judge, concurring in the denial of rehearing en banc.

Our panel applied binding circuit precedent in this appeal, but I write to explain why I think that precedent (namely United States v. Jackson, 995 F.3d 522 (6th Cir. 2021)) was correct.

As an initial matter, we must apply something of a clear-statement rule here. The federal savings statute—codified at 1 U.S.C. § 109—provides that "[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide[.]" The word "repeal[,]" as used in § 109, "applies when a new statute simply diminishes the penalties that [an] older statute set forth." Dorsey v. United States, 567 U.S. 260, 272, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). The First Step Act is plainly such a "repeal." Cf. id.; see also United States v. Hughes, 733 F.3d 642, 644 (6th Cir. 2013). Thus, according to the Supreme Court, "we must assume that Congress did not intend" for such a repeal to apply retroactively in a defendant's case "unless [Congress] clearly indicated to the contrary." Id. at 264, 132 S.Ct. 2321 (emphasis in original); see also Hughes, 733 F.3d at 644. So the question is whether Congress has clearly indicated that the Act should apply here.

Section 403(b) of the First Step Act provides: "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." (Emphasis added). The interpretive question is whether that last, restrictive phrase requires the absence of a particular historical fact—namely the imposition of a sentence—or the absence of a sentence with ongoing legal effect.

We usually give the words of statutes their ordinary meaning; and on that score—for all the opinions written on this issue—nobody has come close to dismantling then-Judge Barrett's grammatical exegesis as to why § 403(b) demands the absence of a particular historical fact. See United States v. Uriarte, 975 F.3d 596, 606-09 (7th Cir. 2020) (Barrett, J., dissenting). Section 403(b) refers not merely to a "sentence" but to the imposition of one; and the statute's use of the verb "imposed[,]" plainly enough, puts the section's "focus on the historical fact" of the sentence's imposition. Id. at 607. That comports with the section's use of the present-perfect tense, which signifies an "act, state, or condition that is now completed or continues up to the present." The Chicago Manual of Style ¶ 5.132 (17th ed. 2017). Here, the sentence's imposition is "now completed." And the act of imposing a sentence could not possibly "continue up to the present"—because the imposition of a sentence occurs at a fixed point in time, when the district court "state[s] in open court the reasons for its imposition of the particular sentence[.]" 18 U.S.C. § 3553(c).

Moreover—for purposes of precluding the Act's retroactivity as to the sentence for a particular conviction—the imposition of any sentence will do. For § 403(b) simply asks whether, as of the Act's date of enactment (December 21, 2018), "a" sentence has or "has not been imposed[.]" First Step Act of 2018, Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5222. That usage of "a"—which here the government calls the "neutral article," but which everyone else calls the "indefinite article," see The Chicago Manual of Style ¶ 5.71—refers to " 'a nonspecific object, thing, or person that is not distinguished from the other members of a class.' " Uriarte, 975 F.3d at 608 (Barrett, J., dissenting) (quoting Garner, Garner's Modern Legal Usage 991 (4th ed. 2016)); see also United States v. Merrell, 37 F.4th 571, 578 (9th Cir. 2022) (Boggs, J., dissenting) (same). Thus, "a sentence" as used in § 403(b) means any kind of sentence, not just a valid or non-vacated one; and it does not mean "a valid sentence that survives constitutional challenge on direct appellate review and is therefore not subject to a vacatur and full remand for resentencing." United States v. Mitchell, 38 F.4th 382, 386 (3d Cir. 2022).

Hence the ordinary meaning of § 403(b) is straightforward: it simply asks whether, as of December 21, 2018, a sentence (meaning any sentence) has been imposed on the defendant. Carpenter's sentence had been imposed as of that date, and indeed had not even been vacated yet. Thus—even under the reasoning of the Seventh Circuit opinion from which then-Judge Barrett dissented—the First Step Act does not apply to Carpenter's resentencing. See Uriarte, 975 F.3d at 602 n.3.

The best argument to the contrary is that we should disregard the ordinary meaning of § 403(b) in favor of a technical meaning. Specifically, a sentence's vacatur typically "wipe[s] the slate clean" for purposes of resentencing, which means—the reasoning goes—that " 'a sentence ha[s] not been imposed' for purposes of § 403(b) at the time of resentencing." Merrell, 37 F.4th at 575. Respectfully, however, that reasoning gives technical legal effect to a figure of speech. Expressions like "wipe the slate clean," or that after a sentence's vacatur "the defendant is placed in the same position as if he had never been sentenced," id. at 576 (cleaned up), are merely a shorthand for describing a district court's discretion in sentencing a defendant on remand: namely, that the court "generally should be free to consider any matters relevant to sentencing, even those that may not have been raised at the first sentencing hearing[.]" Id. (internal quotation marks omitted). Those expressions reflect that a vacated sentence is a sentence without legal effect; but that does not mean the court may proceed as if the earlier sentencing never happened. To the contrary, another statutory provision—entitled "Sentencing upon remand"—provides in relevant part that "[a] district court to which a case is remanded . . . shall apply the guidelines . . . that were in effect on the date of the previous sentencing of the defendant prior to the appeal[.]" 18 U.S.C. § 3742(g) (emphasis added); see also Hughes, 733 F.3d at 645.

Section 3742(g) references the fact of a defendant's earlier sentencing in the same way that § 403(b) does—namely, as a temporal marker that identifies the substantive rules (guidelines in the case of § 3742(g), mandatory minimums for § 403(b)) that the district court must apply when sentencing a particular defendant. And using the historical fact of a defendant's prior sentencing as such a marker does not amount to giving the vacated sentence itself legal effect. A sentence has legal effect when it restrains a defendant's liberty, not when it marks a particular point in time. See Merrell, 37 F.4th at 579 (Boggs, J., dissenting).

Nor is the word "sentence," as used in § 403(b), a term of art that means only a sentence that has not been vacated. That is just another way of saying that a vacated sentence is one that the district court must pretend never happened. Moreover, the Supreme Court has said that courts must not "assume that a statutory word is used as a term of art where that meaning does not fit." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). "Ultimately, context determines meaning, and we do not force term-of-art definitions into contexts where they plainly do not fit and produce nonsense." Id. (cleaned up). The relevant "context" here is the one governed by § 3742(g), namely "[s]entencing upon remand." And the historical fiction that Carpenter advocates would produce nonsense and incoherence alike. Nonsense, because under Carpenter's interpretation—as in Merrell—a defendant who had been in prison for 20 years pursuant to a later-vacated sentence "is somehow a defendant on whom a sentence has not been imposed as of" the First Step Act's effective date. Merrell, 37 F.4th at 578 (Boggs, J., dissenting). (Meanwhile, a sentence cannot be vacated until it is first "imposed.") And incoherence because, under Carpenter's interpretation, a district court must recognize the fact of the defendant's prior sentence for purposes of determining his guidelines range (as required by § 3742(g)), but at the...