United States v. Duffey

92 F.4th 304

UNITED STATES of America, Plaintiff—Appellee, v. Corey Deyon DUFFEY; Jarvis Dupree Ross; Tony R. Hewitt, Defendants—Appellants.

No. 22-10265

United States Court of Appeals, Fifth Circuit

FILED February 2, 2024

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:08-CR-167-1, Jane J. Boyle, U.S. District Judge

Amy Jeannine Mitchell, Brian W. McKay, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Plaintiff - Appellee.

Vivek Jampala, Hunter, Lane & Jampala, San Antonio, TX, for Defendant-Appellant Corey Deyon Duffey, also known as Keyno, also known as Calvin Brown.

Kevin Blake Ross, Law Office of Kevin B. Ross, P.C., Dallas, TX, for Defendant-Appellant Jarvis Dupree Ross, also known as Dookie, also known as Dapree Dollars, also known as Fifty.

Russell Wilson, II, Attorney, Law Office of Russell Wilson, II, Dallas, TX, for Defendant-Appellant Tony R. Hewitt, also known as Priceless T.

Before Southwick, Engelhardt, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

The primary issue in this appeal is whether § 403 of the First Step Act applies to post-enactment resentencings of defendants whose pre-enactment sentences were vacated after the law was enacted. It does not, so Appellants' § 403 claims lack merit. Further, Appellant Duffey's challenge to the application of a sentencing enhancement at his resentencing and Appellant Hewitt's challenge to his remaining § 924(c) convictions both fail. Accordingly, we affirm as to all issues.

I.

Appellants Corey Deyon Duffey, Jarvis Dupree Ross, and Tony R. Hewitt were convicted in 2009 on numerous counts of conspiracy, attempted bank robbery, and bank robbery, as well as using a firearm in furtherance thereof, in violation of 18 U.S.C. § 924(c). See United States v. Duffey, 456 F. App'x 434, 438 & nn.1-4 (5th Cir. 2012). On direct appeal, this court reversed the convictions for the attempted robberies and the corresponding firearms charges, affirmed the other convictions, and remanded to the district court for resentencing. Id. at 444-45. Appellants were each resentenced in 2012. We affirmed these new sentences. See United States v. Ross, 582 F. App'x 528, 529-30 (5th Cir. 2014).

At the time we affirmed Appellants' new sentences, an initial violation of § 924(c) required a mandatory minimum sentence of five years. 18 U.S.C. § 924(c)(1)(A)(i) (effective 2012-2018). If a "second or subsequent" violation was committed, each such conviction was to result in a mandatory sentence of "not less than 25 years[.]" § 924(c)(1)(C)(i). Also at that time, the initial and subsequent convictions could be "stacked," such that a first, second, and any subsequent convictions could arise out of the same incident or conduct. See Deal v. United States, 508 U.S. 129, 132-33, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Thus, when Appellants were convicted under § 924(c)(1)(A)(i) for using a firearm in connection with a conspiracy to commit bank robbery, they received five-year minimum sentences. Because they were also convicted for subsequent § 924(c) violations arising out of the same conduct—convictions that were stackable—Appellants each received 25-year mandatory minimum sentences for every additional § 924(c) conviction.

Appellants filed unsuccessful motions to vacate, set aside, or correct their sentences under 28 U.S.C. § 2255. See United States v. Ross, No. 3:15-CV-3233-B-BH, No. 3:08-CR-167-B-BH(3), 2017 WL 3328120, at *1 (N.D. Tex. June 22, 2017), adopting report and recommendation, 2017 WL 3314195, at *1 (N.D. Tex. Aug. 3, 2017); United States v. Duffey, No. 3:15-CV-0500-B-BH, No. 3:08-CR-0167-B(1), 2017 WL 6989111, at *1 (N.D. Tex. Dec. 29, 2017), adopting report and recommendation, 2018 WL 461126, at *1 (N.D. Tex. Jan. 17, 2018); United States v. Hewitt, No. 3:16-CV-603-B-BH, No. 3:08-CR-167-B(2), 2018 WL 3853708, at *1 (N.D. Tex. July 15, 2018), adopting report and recommendation, 2018 WL 3845232, at *1 (N.D. Tex. Aug. 13, 2018).

In 2020, Appellants filed motions for authorization to file successive § 2255 motions in light of the Supreme Court's decision in United States v. Davis, — U.S. —, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019), which held that conspiracy-predicated § 924(c) convictions do not qualify as "crimes of violence." Appellants argued that several of their convictions—and resulting 25-year mandatory minimum sentences—were unconstitutional because the predicate offense for the enhancement, i.e., conspiracy to commit bank robbery, no longer qualified as a crime of violence under § 924(c)(3). We granted Appellants' motions.

Appellants then filed their successive habeas applications in the district court, which granted relief. The district court vacated Appellants' § 924(c) conspiracy convictions and accompanying sentences, vacated the sentences on all remaining convictions, and ordered resentencing.

Prior to Appellants' resentencing hearings, they each filed objections to their respective presentence reports (PSR), arguing, inter alia, that § 403 of the First Step Act of 2018 applied to their resentencing. Specifically, they argued they were subject only to the five-year mandatory minimum sentence set by § 924(c) under § 403, which eliminated sentence stacking.¹ The Government and the probation officer responded that § 403 did not apply because Appellants were serving valid sentences at the time that the First Step Act was enacted on December 21, 2018. The Government maintained this view during Duffey's and Ross's resentencings. However, the Government changed its position by the time of Hewitt's resentencing. Similarly, on appeal, the Government asserts that § 403 should apply across the board to Appellants' resentencings.

In addition to Appellants' § 403 arguments, Duffey and Hewitt each raised additional arguments at their 2022 resentencings that are at issue in this appeal. Duffey objected to the application of a two-level adjustment under U.S.S.G. § 2B3.1(b)(4)(B) for physical restraint of the victim, arguing that even though the bank manager was held at gunpoint, moved to the vault, and ordered to open it during one of the bank robberies, he was not physically restrained as defined in the Guidelines. Hewitt moved to dismiss his remaining § 924(c) convictions, arguing that the district court's vacatur of his § 924(c)(1)(A)(i) conviction required vacatur of all his § 924(c) convictions.

The district court overruled Appellants' objections—including Duffey's physical-restraint enhancement objection—and denied Hewitt's motion to dismiss. Appellants were then resentenced as follows: Duffey received 1,560 months imprisonment; Ross received 1,625 months imprisonment; and Hewitt received 1,625 months imprisonment. Appellants now challenge those sentences.

II.

We review questions of statutory interpretation de novo. United States v. Tilford, 810 F.3d 370, 371 (5th Cir. 2016). We review the district court's interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Garcia, 857 F.3d 708, 711-12 (5th Cir. 2017). On matters of jurisdiction, our review is de novo, using the same standard as the district court. Gulf Petro Trading Co. v. Nigerian Nat'l Petroleum Corp., 512 F.3d 742, 746 (5th Cir. 2008). Questions of law relating to a § 2255 application are also reviewed de novo, while factual findings are reviewed for clear error. United States v. Wiese, 896 F.3d 720, 723 n.3 (5th Cir. 2018).

III.

We must first determine whether § 403(a) of the First Step Act applies to Appellants' latest resentencings. We conclude it does not.

"[W]e start where we always do: with the text of the statute." Van Buren v. United States, — U.S. —, 141 S. Ct. 1648, 1654, 210 L.Ed.2d 26 (2021). Section 403(b) of the First Step Act states that § 403(a) "shall apply to any offense that was committed before the date of enactment of th[e] Act, if a sentence for the offense has not been imposed as of such date of enactment." In the mine run of pending cases, application of this language is straightforward. But does the First Step Act's reach encompass prior offenses for which a pre-Act sentence is later vacated? Can it be said that such a sentence "has not been imposed"?

These questions have "vexed[ ] and split[ ] our sister circuits." United States v. Mitchell, 38 F.4th 382, 386 (3d Cir. 2022). On one side of the split, the Third, Fourth, and Ninth Circuits have held that the First Step Act "requires [courts] to treat the vacated sentence as if it were never imposed[ ]" so that § 403(b) encompasses offenses involving the post-enactment vacatur of pre-enactment sentences. United States v. Merrell, 37 F.4th 571, 577-78 (9th Cir. 2022); see also Mitchell, 38 F.4th at 389; United States v. Bethea, 841 Fed. App'x 544, 550-51 (4th Cir. 2021).² On the other side, the Sixth Circuit has held that § 403(b) does not apply when, notwithstanding post-enactment vacatur, "a sentence had been imposed" prior to the date of enactment. United States v. Jackson, 995 F.3d 522, 525 (6th Cir. 2021); see also United States v. Carpenter, 80 F.4th 790, 791 (6th Cir. 2023) (Kethledge, J., joined by Sutton, C.J., Thapar, and Bush, JJ., concurring in the denial of rehearing en banc) ("[F]or purposes of precluding the Act's retroactivity as to the sentence for a particular conviction—the imposition of any sentence will do. For § 403(b) simply asks whether, as of the Act's date of enactment (December 21, 2018), 'a' sentence has or 'has not been imposed[.]' ") (citation omitted). As explained below, we agree with the Sixth Circuit's interpretation of § 403(b) because it is the reading more faithful to the statute's text.

"When faced with questions of statutory construction, 'we must first determine whether the statutory text is plain and unambiguous' and, '[i]f it is, we must apply the statute according to its terms.' " Asadi v. G.E. Energy (USA) L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) ...