United States v. Javier Hart ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-3718
_______________
UNITED STATES OF AMERICA
v.
JAVIER HART,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:03-cr-00827-001)
District Judge: Hon. Wendy Beetlestone
_______________
Argued: October 15, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Filed: December 21, 2020)
_______________
Christy Martin [ARGUED]
Federal Community Defender Office,
Eastern District of Pennsylvania
601 Walnut Street, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
William M. McSwain
Robert A. Zauzmer [ARGUED]
Bernadette A. McKeon
Office of the United States Attorney,
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
The First Step Act is merciful. It lets courts slash some
crack offenders’ prison sentences. But its mercy is finite. It lets
courts lower those sentences only once, even if the first sen-
tence reduction was too stingy because of a mistake.
Thanks to the First Step Act, Javier Hart’s sentence was cut
from life to thirty-five years. But because of a misunderstand-
ing, he may have left some years on the table. The First Step
Act has no further mercy for Hart. But the Government does.
2
Because the error was innocent, it says, we should overlook the
Act’s limit and give Hart another shot.
The Act’s bar on second resentencings is not jurisdictional.
So we can and will accept the Government’s waiver of that bar.
We will vacate Hart’s sentence and remand to let him seek a
shorter one.
I. BACKGROUND
A. The First Step Act
In 2010, Congress raised the amount of crack cocaine
needed to trigger various mandatory minimum sentences. Fair
Sentencing Act, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372;
Dorsey v. United States, 567 U.S. 260, 264 (2012). That low-
ered the mandatory minimums for offenders who fell short of
the new thresholds. In 2018, Congress passed the First Step
Act, making those new minimums retroactive. Pub. L. No.
115-391, § 404, 132 Stat. 5194, 5222. That Act does not guar-
antee anyone a lower sentence. § 404(c). But it does let an eli-
gible prisoner ask the court for a shorter one. § 404(b).
The First Step Act limits prisoners to one bite at the apple:
“No court shall entertain a motion made under this section to
reduce a sentence if the sentence was previously imposed or
previously reduced in accordance with . . . the Fair Sentencing
Act of 2010 . . . .” § 404(c).
B. Hart’s conviction, sentencing, and resentencing
The Act was passed for people like Hart. In 2005, he was
convicted of possessing crack cocaine with intent to distribute
3
it. The Federal Sentencing Guidelines recommended imprison-
ing him for thirty-five years to life. But because of his exten-
sive criminal record and the amount of crack he was caught
with, he faced a mandatory minimum sentence of life. That
statutory minimum overrode the lower Guidelines recommen-
dation. In 2010, the Fair Sentencing Act lowered the manda-
tory minimum for Hart’s crime to ten years. So when Congress
made those lower minimums retroactive in 2018, Hart became
eligible for a new, lower sentence.
Many other prisoners were in the same boat. In the Eastern
District of Pennsylvania, the U.S. Attorney’s Office and Fed-
eral Defender’s Office quickly formed a screening committee
to deal with these cases. Just a few weeks after the law passed,
the committee identified prisoners who had become eligible for
lower sentences, worked out new sentences for them, and sub-
mitted them for the District Court’s approval. The committee
was able to act so quickly because it thought that eligible in-
mates could be resentenced only within their new Guidelines
range, not below it. It later became clear that this understanding
was incorrect.
Hart’s revised sentence reflects this misunderstanding. The
committee negotiated a new thirty-five-year sentence, at the
bottom of his new Guidelines range, and Hart took the deal
without asking for a lower sentence. In March 2019, the Dis-
trict Court accepted the agreement and lowered his sentence to
thirty-five years.
4
C. Hart’s quest for an even shorter sentence
As the case law developed, the misunderstanding became
clear. So in October 2019, Hart promptly asked the court to
lower his sentence more based on the factors in 18 U.S.C.
§ 3553(a). He argued that he had matured and reformed himself
over his sixteen years in prison. The Government opposed his
request, arguing that his thirty-five-year sentence was fitting.
But because of the misunderstanding about the First Step Act’s
scope, the Government did not oppose Hart’s motion on the
ground that he had already gotten one sentence reduction.
The District Court denied Hart’s motion. It explained that
the First Step Act’s purpose was to reduce the sentencing dis-
parity between crack and powder cocaine. But Hart’s Guide-
lines range depended mainly on his criminal history as a career
offender, not on the amount of crack he had possessed. The
court did not consider the § 3553(a) factors or Hart’s personal
growth. And even though the Government did not press the
point, the court added that Hart had gotten one sentence reduc-
tion and could not now get a second one.
D. Hart’s appeal
On appeal, Hart argued that the District Court had to con-
sider the § 3553(a) factors. He was right. After the parties
briefed this appeal, we decided United States v. Easter, 975
F.3d 318 (3d Cir. 2020). In that case, we said that when a court
rules on a First Step Act resentencing motion, it “must consider
all of the § 3553(a) factors to the extent they are applicable.”
Id. at 326. That includes the prisoner’s “postsentencing re-
habilitation.” Id. at 327 (quoting Pepper v. United States, 562
5
U.S. 476, 491 (2011)). Here, the court did not consider those
factors. Once we decided Easter, the Government conceded
that Hart should win this appeal. It asked us to remand the case
for a resentencing in compliance with Easter.
But before we can do that, we must ensure that Hart is eli-
gible for any further resentencing. As the District Court
pointed out, Hart’s sentence has already been shortened once
under the Fair Sentencing Act’s new mandatory minimums.
And the First Step Act says: “No court shall entertain a motion
. . . to reduce a sentence if the sentence was previously imposed
or previously reduced in accordance with the . . . Fair Sentenc-
ing Act . . . .” § 404(c).
That language suggests that Hart should not get any second
resentencing. Both Hart and the Government disagree, but for
different reasons. Hart says that § 404(c) does not apply to him.
The Government says that it does but that its bar is waivable.
We agree with the Government. Though the bar’s text is incon-
clusive, its context and the presumption against treating bars as
jurisdictional carry the day.
II. SECTION 404(c) BARS HART’S CLAIM
Section 404(c) covers Hart. It bars a second motion: if a
prisoner’s sentence has been “previously reduced in accord-
ance with” the Fair Sentencing Act’s new mandatory mini-
mums, then a court may not use § 404(b) to reduce his sentence
again.
Hart tries to get around this bar. He argues that his sentence
was shortened “in accordance with” the 2018 First Step Act,
not the 2010 Fair Sentencing Act. We disagree. While it was
6
shortened under the 2018 Act, it was also shortened under the
2010 Act. One lowered his mandatory minimum; the other let
him enjoy that new minimum retroactively. Because he needed
both, the bar applies to him.
III. WE ACCEPT THE GOVERNMENT’S WAIVER OF § 404(c)
Although the Government wants Hart’s sentence to stay the
same on the merits, it seeks to waive § 404(c) “in the interests
of justice.” Gov’t Second Suppl. Br. 3. We agree that letting
Hart seek another reduction would serve the interests of justice.
He lost the chance to lower his sentence by many years because
of a misunderstanding. The misunderstanding happened be-
cause the Defenders commendably cooperated with the U.S.
Attorney’s Office to expedite resentencings, before everyone
fully understood the law. So we would gladly bless the Gov-
ernment’s waiver.
But only if we can. Not all rules are waivable. Some are
jurisdictional limits on courts’ power and so cannot be waived.
See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392–93
(1982). If § 404(c) deprives courts of jurisdiction to resentence
prisoners a second time, then even a waiver cannot empower
them to do so.
We hold that § 404(c) is not jurisdictional. A rule is not
jurisdictional unless Congress says so “clearly.” Arbaugh v.
Y & H Corp., 546 U.S. 500, 515 (2006). Congress did not do
that here. To start, though the bar eliminates a remedy, it does
not end a criminal case entirely. We thus begin with a strong
presumption that the rule is not jurisdictional. The remaining
evidence does not overcome that presumption. The statutory
7
text is inconclusive, only hinting that the rule might be juris-
dictional. Its context suggests that it is not. Because the bar is
not clearly jurisdictional, we can accept the Government’s
waiver.
A. Because § 404(c) eliminates only one remedy, not
an entire case, we strongly presume that it is not
jurisdictional
The bar’s function strongly signals that it is not jurisdic-
tional. It cuts off only one remedy, a second resentencing under
§ 404(b) “to modify a defendant’s existing sentence.” Easter,
975 F.3d at 323; see also United States v. Webb, 565 F.3d 789,
794 (11th Cir. 2009) (explaining that a resentencing after a
Sentencing Guidelines range is lowered is “ ‘a continuation of
a criminal case’ rather than a ‘civil post-conviction action’ like
a habeas petition” (quoting United States v. Fair, 326 F.3d
1317, 1318 (11th Cir. 2003))). The bar does not destroy the
court’s power to hear a case. Even if a court applied this bar, it
would not end the criminal case; the court could still hear, say,
a compassionate-release motion.
Limits on just a remedy normally are not jurisdictional.
Traditionally, jurisdiction means a court’s power to “proceed
at all in any cause,” not its power to award a particular remedy:
“[W]hen [jurisdiction] ceases to exist, the only function re-
maining to the court is that of announcing the fact and dismiss-
ing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868) (emphasis added). Cf. Piasecki v. Court of Common
Pleas, 917 F.3d 161, 165–66 (3d Cir. 2019) (suggesting in dic-
tum that 28 U.S.C. § 2254(a), which requires courts to dismiss
some habeas proceedings entirely, is jurisdictional). This
8
understanding of jurisdiction dates to the Founding: the Con-
stitution defines our jurisdiction’s outer bounds by listing the
classes of cases and controversies we have “Power” to hear.
U.S. Const. art. III, § 2, cl. 1.
To be sure, “Congress is free” to ignore that traditional un-
derstanding of jurisdiction and “attach the conditions that go
with the jurisdictional label to” other sorts of rules. Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). For
instance, 16 U.S.C. § 3168 bars jurisdiction to grant certain en-
vironmental injunctions that “last[ ] longer than ninety days.”
Those conditions, however, are irregular. Rules that limit only
a remedy yet keep a case alive can be jurisdictional, but we
presume that they are not.
Thus, if a rule limits only a remedy, we will not treat it as
jurisdictional without extremely clear evidence. For instance,
§ 3168 is clear enough because it uses the word “jurisdiction.”
A law that erases a court’s “power” to issue a remedy might
also be clear enough. But without such explicit language, we
will not treat it as jurisdictional.
B. The remaining evidence does not overcome the
presumption
Because § 404(c) limits just one remedy, we strongly pre-
sume that it is not jurisdictional. The rest of the evidence does
not overcome that presumption. While some of the bar’s words
hint at jurisdiction, those hints are inconclusive and diluted by
its context.
1. The language is inconclusive. The bar says that “[n]o
court shall entertain” certain second resentencing motions.
9
§ 404(c). This language is the best evidence that it is jurisdic-
tional. But it is not strong enough.
To start, the use of the active voice, making the “court” the
subject, is suggestive but not conclusive. Like many jurisdic-
tional rules, § 404(c) not only says what should happen in a
case, but speaks directly to the court. Cf. Piasecki, 917 F.3d at
165–66 (discussing a different bar that also speaks directly to
the court). That phrasing hints that it limits the court’s power.
That is just a hint; some rules worded that way are not jurisdic-
tional. Take § 404’s statutory parent, the similarly phrased 18
U.S.C. § 3582. It says that sentencing “court[s] may not modify
a term of imprisonment once it has been imposed” except un-
der limited conditions (including § 404). § 3582(c). This rule is
not jurisdictional. United States v. Franco, 973 F.3d 465, 467–
68 (5th Cir. 2020); United States v. Taylor, 778 F.3d 667, 671
(7th Cir. 2015). Cf. Dolan v. United States, 560 U.S. 605, 607–
08 (2010) (holding that a mandatory victim-restitution rule
providing that “the court shall” finally determine a victim’s
losses within ninety days is not jurisdictional after the ninety
days elapse); United States ex rel. May v. Purdue Pharma L.P.,
737 F.3d 908, 914, 916 (4th Cir. 2013) (holding that a False
Claims Act rule that “[t]he court shall dismiss an action” based
on publicly disclosed information is not jurisdictional).
Congress’s choice of verb, “entertain,” also is not a clear
signal. “To entertain” is not to have power. It means “to give
judicial consideration to.” Entertain (def. 1), Black’s Law Dic-
tionary (11th ed. 2019). Congress can tell a court not to con-
sider a matter without revoking its power to consider it. A ju-
risdictional bar might use that word. See, e.g., Piasecki, 917
10
F.3d at 165–66 (dictum treating 28 U.S.C. § 2254(a) as juris-
dictional). But many rules using the word are not jurisdictional.
See, e.g., 28 U.S.C. § 2255(c) (“A court may entertain and de-
termine such motion without requiring the production of the
prisoner at the hearing.”). So the bar’s language sends only
moderate signals that it is jurisdictional.
2. The context points the other way. Those signals are
eroded by context. When we decide whether a statute’s limit is
jurisdictional, we must consider its “substantive purpose.” Do-
lan, 560 U.S. at 612. Some laws, like the federal habeas statute,
try to keep cases out of court “to further the principles of com-
ity, finality, and federalism.” Duncan v. Walker, 533 U.S. 167,
178 (2001) (internal quotation marks omitted) (quoting Wil-
liams v. Taylor, 529 U.S. 420, 436 (2000)). Not the First Step
Act. It made retroactive the Fair Sentencing Act, which “was
designed ‘to restore fairness to Federal cocaine sentencing.’ ”
United States v. Jackson, 964 F.3d 197, 200 n.2 (3d Cir. 2020)
(quoting the Act). We doubt that Congress, in the same breath
with giving crack offenders fairer sentences, put a limit on that
relief that lacked “equitable exceptions” like waiver. Bowles v.
Russell, 551 U.S. 205, 214 (2007).
In short, § 404(c)’s text is inconclusive and weakened by its
statutory context and purpose. That subsection is not clear
enough to overcome the strong presumption that its remedial
limit is nonjurisdictional.
11
* * * * *
Hart has no right to a second resentencing hearing that com-
plies with Easter. But the Government, to its credit, agrees that
would be fair. The District Court has jurisdiction to give him a
new sentence, and letting Hart seek one would be just. So we
accept the Government’s waiver and will remand.
12