United States v. Hernandez

107 F.4th 965

UNITED STATES of America, Plaintiff-Appellee, v. Orestes HERNANDEZ, a.k.a. John Doe 2, a.k.a. Cuco, Defendant-Appellant.

No. 22-13311

United States Court of Appeals, Eleventh Circuit

Filed: July 8, 2024

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:96-cr-00443-JEM-4

Andrew C. Noll, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Alix I. Cohen, DOJ-USAO, Southern District of Florida, Miami, FL, Lisa Tobin Rubio, U.S. Attorney Service - Southern District of Florida, Jason Wu, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Hector L. Flores, Barzee Flores, Miami, FL, for Defendant-Appellant.

Paul Cozzi, Kirkland & Ellis, LLP, Chicago, IL, for Amicus Curiae Paul Cozzi.

Before Rosenbaum, Newsom, and Luck, Circuit Judges.

Newsom, Circuit Judge:

This case presents an interesting question of statutory interpretation that has divided our sister circuits. Section 403(a) of the First Step Act of 2018 prohibits district courts from engaging in one particular form of (what some have called) sentence "stacking." Specifically, and as relevant here, under § 403(a), if a defendant is charged in the same indictment with multiple counts of possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and he doesn't have a previous § 924(c) conviction that has become final, the second and ensuing counts will carry only 5-year consecutive mandatory sentences, rather than the much higher consecutive mandatories that would have attached under preexisting law. See First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22. Significantly for our purposes, § 403(b) then provides that § 403(a)'s modified stacking rule applies to pre-Act convictions—but only "if a sentence for the offense has not been imposed as of [the] date of enactment." Id. § 403(b). We must decide whether a criminal sentence that was pronounced before the First Step Act's effective date but thereafter vacated counts as "a sentence" that "has . . . been imposed" within the meaning of § 403(b)—in essence, whether § 403(b) refers to the historical fact of a sentence's imposition, in which case the answer to the question as we've framed it is yes, or to the legal effect of that sentence, in which case the answer is no. Compare, e.g., United States v. Duffey, 92 F.4th 304, 309 (5th Cir. 2024) (yes), cert. granted, — U.S. —, — S.Ct. —, --- L.Ed.2d —, 2024 WL 3259688 (U.S. July 2, 2024), and United States v. Jackson, 995 F.3d 522, 525-26 (6th Cir. 2021) (yes), with, e.g., United States v. Mitchell, 38 F.4th 382, 389 (3d Cir. 2022) (no), and United States v. Merrell, 37 F.4th 571, 577 (9th Cir. 2022) (no).

We hold that § 403(b)'s text and context make clear that a sentence that was pronounced pre-Act but thereafter vacated does qualify as "a sentence" that "has . . . been imposed" for § 403(b) purposes. If that's not the result that Congress intended, it is of course free to amend the statute. We are not.

I

Way back in 1998, Orestes Hernandez was convicted of participating in a series of violent crimes—in particular, (1) several robbery- and extortion-related Hobbs Act offenses, (2) multiple carjacking offenses, and, as relevant here, (3) three violations of 18 U.S.C. § 924(c), which prohibits using or carrying a firearm "during and in relation to any crime of violence." Hernandez was originally sentenced for his crimes in 1999, and then, following an appeal, was resentenced in 2002.

Nearly two decades later, Hernandez filed a motion under 28 U.S.C. § 2255 challenging his § 924(c) convictions on the ground that under the Supreme Court's intervening decisions in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and United States v. Davis, 588 U.S. 445, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), his attempted-robbery charge no longer qualified as a predicate "crime of violence" for § 924(c) purposes. In an order entered in 2021, the district court vacated one of Hernandez's § 924(c) convictions and ordered him resentenced. That resentencing occurred in 2022.

At resentencing, the court had to grapple with whether the First Step Act, which Congress had passed in 2018, affected Hernandez's sentencing calculus. At the time that Hernandez committed his crimes in 1995 and 1996, at the time he was convicted of those offenses in 1998, at the time he was originally sentenced for them in 1999, and at the time of his initial resentencing in 2002, separate § 924(c) counts charged in the same indictment could be "stacked" in a particular way, leading to dramatically increased penalties for any "second or subsequent conviction." See 18 U.S.C. § 924(c)(1) (1996). Under that regime, Hernandez would face a 5-year sentence for his first § 924(c) violation and a consecutive 20-year sentence for the second. See id. Hernandez argued, however, that § 403(b) of the newly passed First Step Act prohibited that sort of stacking of § 924(c) violations arising out of a single indictment and, accordingly, that he was subject only to much lower 5-year terms on each § 924(c) count. The district court rejected Hernandez's contention that he was entitled to the benefit of the First Step Act's modified stacking rule.

This is Hernandez's appeal. The question before us is whether § 403(a) applies to Hernandez's case. And the answer to that question, in turn, depends on the meaning of § 403(b), which, again, makes § 403(a) applicable to pre-Act convictions provided that "a sentence for the offense has not been imposed as of such date of enactment." First Step Act of 2018, Pub. L. No. 115-391, § 403(b). We must decide whether a sentence that was pronounced before the First Step Act's passage—as Hernandez's was, whether we consider 1999 or 2002 as the operative date—but was thereafter vacated—as Hernandez's was in 2021—constitutes "a sentence" that "has . . . been imposed" within the meaning of § 403(b). Hernandez insists that it doesn't and, therefore, that § 403(a)'s modified stacking rule applies to his case.

Following the First-Step Act's adoption, the government initially disagreed with other petitioners advancing Hernandez's position. It contended, to the contrary, that a sentence that was initially pronounced before the Act's passage, even if later vacated, counts as "a sentence" that "has . . . been imposed" for § 403(b) purposes. But the government later reversed course, filed a confession of error in Hernandez's case, and adopted his interpretation. Hernandez and the government now jointly ask us to remand to the district court for application of § 403(a) to Hernandez's second § 924(c) count. We appointed Paul M. Cozzi as amicus curiae to defend the district court's judgment. He has ably discharged his responsibilities.

II

We start with the relevant statutory provisions. First, § 403(a)'s modified stacking rule:

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".

Pub. L. No. 115-391, § 403(a). In plain English—and no one disputes this—§ 403(a) changes the rules to (in many cases) ameliorate the effects of stacking multiple § 924(c) sentences arising out of the same indictment. Here, all agree that Hernandez's two remaining § 924(c) offenses were in fact charged in the same indictment. Accordingly, if § 403(a) applies to his case, then Hernandez is entitled to a resentencing. If it doesn't, then he's not. The real question, therefore, is whether § 403(a) applies. And the answer to that question depends on the proper interpretation of § 403(b).

In § 403(b), Congress specified § 403(a)'s "APPLICABILITY TO PENDING CASES" as follows:

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.

Id. § 403(b). So again, in plain English, § 403(a)'s modified stacking rule applies to pre-Act convictions like Hernandez's—but only, the statute says, "if a sentence for the offense has not been imposed as of [the] date of enactment." Given § 403(b)'s language, the dispositive question is this: Does Hernandez's initial sentence, which a district court pronounced before the First Step Act's passage in 2018 but thereafter vacated in 2021, qualify as "a sentence" that "has . . . been imposed" within the meaning of § 403(b)? For reasons we will explain, we hold that it does—and, therefore, that Hernandez is not entitled to the benefit of § 403(a)'s new stacking rule.

A

As in all statutory-interpretation cases, our duty is to discern § 403(b)'s ordinary meaning. See United States v. Pate, 84 F.4th 1196, 1201 (11th Cir. 2023) (en banc) (citing Niz-Chavez v. Garland, 593 U.S. 155, 160, 141 S.Ct. 1474, 209 L.Ed.2d 433 (2021)). Our job, therefore, is to inquire "how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context." Id. (quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392-93 (2003)). Here, we must determine whether a sentence that was pronounced before the First Step Act's passage but was thereafter vacated qualifies as "a sentence" that "has . . . been imposed" for § 403(b) purposes. Three textual clues lead us to conclude that it does.

We begin with the word "sentence." In its reply brief, the government cites Black's Law Dictionary: A "sentence" is "[t]he judgment that a court formally pronounces after finding a criminal defendant guilty." Black's Law Dictionary 1636 (11th ed. 2019). That explanation, we agree, accurately captures the ordinary meaning, but in our view it tends to undermine Hernandez and the government's interpretation and to confirm...