United States v. Hector Uriarte ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2092
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
HECTOR URIARTE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09-cr-00332-3 — Joan B. Gottschall, Judge.
____________________
ARGUED MAY 13, 2020 — DECIDED SEPTEMBER 15, 2020
 A disagreement between the panel assigned in this case and the panel
assigned in United States v. Bethany, 19-1754, on the interpretation of the
First Step Act was submitted to the entire court pursuant to Circuit Rule
40(e). The members of the court in regular active service determined that
en banc consideration was appropriate. The en banc court, including a
senior circuit judge assigned to the panels in both cases, then determined
that, because the arguments were ably set forth in the parties’ briefs and
arguments before the panels, additional oral argument before the en
banc court would be an inefficient use of judicial resources. Accordingly,
the case was taken under advisement by the en banc court on the briefs
and oral arguments submitted to the panels.
2 No. 19-2092
____________________
Before SYKES, Chief Judge, and FLAUM, EASTERBROOK,
RIPPLE, KANNE, ROVNER, WOOD, HAMILTON, BARRETT,
BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
RIPPLE, Circuit Judge. Section 403 of the First Step Act of
2018 amended the mandatory minimum sentence for certain
firearm offenses. Although sentencing reform is generally
prospective, Congress specifically mandated that these
amendments were to apply to an offense committed before
enactment “if 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), 132 Stat. 5194, 5222
(codified at 18 U.S.C. § 924 note). We vacated, on unrelated
grounds, Hector Uriarte’s initial sentence before the
enactment of the First Step Act. United States v. Cardena, 842
F.3d 959 (7th Cir. 2016). At resentencing, the district court
ruled that he was entitled to be sentenced under the
provisions of the Act. We agree with the district court and
therefore affirm its judgment.
I
BACKGROUND
Hector Uriarte was a member of a gang that conspired to
kidnap and rob drug dealers for money and drugs. He was
indicted for, and convicted of, several federal offenses,
including racketeering, drug crimes, and two counts of using
a firearm to commit a kidnapping in violation of 18 U.S.C.
§ 924(c). A conviction for a single count of using a firearm to
commit a crime of violence like kidnapping carries a
mandatory minimum penalty of five years’ imprisonment.
No. 19-2092 3
Id. § 924(c)(1)(A)(i). That mandatory minimum is elevated to
seven years if the firearm was “brandished” during the
course of the crime. Id. § 924(c)(1)(A)(ii).
Before the First Step Act, a second violation of § 924(c)
triggered a much higher 25-year mandatory minimum, even
if the two counts were asserted in a single indictment. The First
Step Act amended § 924(c) so that only a second § 924(c)
violation committed after a prior conviction for the same
offense will trigger the 25-year minimum. First Step Act
§ 403(a); see United States v. Davis, 139 S. Ct. 2319, 2324 n.1
(2019).
At the time of Mr. Uriarte’s sentencing in 2013, the
district court calculated that he was subject to a mandatory
minimum of 42 years’ imprisonment: 10 years from the
various racketeering and drug charges, 7 years for the first
firearm offense because the court determined that it had
involved brandishing a weapon, and 25 years for the second
firearm offense. The court sentenced Mr. Uriarte to 50 years
in prison, a sentence above the mandatory minimum but
well below the Guidelines recommendation.
Along with several codefendants, Mr. Uriarte appealed
his convictions and sentence. Cardena, 842 F.3d 959. Among
other arguments, we reviewed a challenge to his sentence
based on the Supreme Court’s decision in Alleyne v. United
States, 570 U.S. 99 (2013). Alleyne held that brandishing is an
element of the § 924(c) offense that must be found by a jury.
In Mr. Uriarte’s case, the court rather than the jury had
found the element of brandishing. Cardena, 842 F.3d at 1000–
02. We therefore vacated his sentence and remanded so that
4 No. 19-2092
Mr. Uriarte could be resentenced without the brandishing
1
enhancement for the first firearm offense.
At the time of the enactment of the First Step Act,
Mr. Uriarte was a convicted, but unsentenced, federal
defendant. When the time for his sentencing arrived, he
asked the district court to apply § 403 of the Act. The court
agreed, and over the Government’s objection, it sentenced
him under the provisions of the First Step Act. As
Mr. Uriarte’s second firearm offense no longer triggered a
25-year mandatory minimum, the court sentenced him to 20
1 Specifically, in United States v. Cardena, we concluded that, in light of
Alleyne v. United States, 570 U.S. 99, 103 (2013), Mr. Uriarte was
“improperly subjected to a 7-year mandatory minimum on count 8 for
brandishing a firearm where the jury only convicted [him] of using or
carrying a firearm.” 842 F.3d 959, 1000 (7th Cir. 2016). We explained that,
when sentencing Mr. Uriarte, “the district court departed downward
from life to 18 years and then imposed the consecutive 7-year and
25-year mandatory minimums, for a total term of 50 years’
imprisonment. Because the mandatory minimum of 7 years went into the
district court’s determination of [Mr. Uriarte’s] ultimate sentence[], we
cannot say that the Alleyne error was harmless.” Id. at 1001.
We further noted that the case was “unusual because it is not often
that the guidelines range is only life imprisonment.” Id. Thus, in order to
identify “a lower bracket for purposes of deciding what sentence to
give” Mr. Uriarte, the district court “treat[ed] the mandatory minimum”
as that “lower bracket.” Id. at 1001–02. The Government had argued in
Cardena that the Alleyne error “‘had absolutely no effect’” on the district
court’s calculation of Mr. Uriarte’s sentence because the sentence was
“above the mandatory minimum.” Id. at 1001 (citation omitted). We
rejected this argument because the district court had “in effect” used the
mandatory minimum as the starting point in its calculation. Id. at 1001.
We held that Mr. Uriarte was therefore “entitled to resentencing.” Id. at
1002.
No. 19-2092 5
years’ imprisonment based on its recalculation of the
mandatory minimum: 10 years for the various drug and
racketeering offenses, 5 years for the first firearm offense
without the brandishing enhancement, and 5 years for the
2
second firearm offense. The Government now appeals
Mr. Uriarte’s new sentence.
2 The actions of both the district court and the parties reflect the
understanding that our remand in Cardena was for a plenary
resentencing. Our instructions in Cardena, read in light of our settled law,
make clear that the remand was for a full, or plenary, resentencing.
As a general matter, we have distinguished three types of remand.
United States v. Simms, 721 F.3d 850, 852 (7th Cir. 2013). The two more
limited remands are (1) those in which “the appellate court seeks a ruling
or advice from the trial court and[,] pending its receipt of that ruling or
advice[,] retains jurisdiction over the appeal,” and (2) those in which “the
appellate court returns the case to the trial court but with instructions to
make a ruling or other determination on a specific issue or issues and do
nothing else.” Id. (emphasis added). Cardena does not implicate either of
these limited remands.
In the third and “most common form of remand,” the “general
remand[,] the appellate court returns the case to the trial court for further
proceedings consistent with the appellate court’s decision, but
consistency with that decision is the only limitation imposed by the
appellate court.” Id. Moreover, we have noted that, when we disturb one
aspect of a sentencing package, our preference is for a full resentencing:
Because a criminal sentence is normally a package that
includes several component parts (term of
imprisonment, fine, restitution, special assessment,
supervised release), when one part of the package is
disturbed, we prefer to give the district court the
opportunity to reconsider the sentence as a whole so as
to “effectuate its sentencing intent.” Pepper v. United
States, 562 U.S. 476, 507 (2011). Vacating the sentence
(continued … )
6 No. 19-2092
( … continued)
and returning the case to the district court for imposition
of a new sentence allows the district court to
“reconfigure the sentencing plan” so as to “satisfy the
sentencing factors in 18 U.S.C. § 3553(a).” Id.United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016).
“[I]t is possible in some cases for us to reverse and remand on certain
issues and yet not unbundle the package.” United States v. Smith, 103 F.3d
531, 534 (7th Cir. 1996). “In other cases,” however, “our action may likely
undermine the entire sentencing intent of the district judge. In the latter
cases, full resentencing is appropriate.” Id.Both the language that we employed in our Cardena remand, and the
nature of the error that formed the basis of Mr. Uriarte’s initial
sentencing, point clearly to the conclusion that our remand required
plenary resentencing. In Cardena, we stated: “We VACATE the sentence[]
of … Hector Uriarte on count 8 and REMAND for resentencing
consistent with this opinion.” 842 F.3d at 1002. This broad language
mandates a complete resentencing. See United States v. Young, 66 F.3d
830, 836 (7th Cir. 1995) (stating that the language, “‘[w]e therefore vacate
the district court’s sentence and remand the case for resentencing
consistent with this opinion’” was “broad,” and that the language, we
“‘vacate[] and the case [is] remanded for resentencing on the issue of
obstruction of justice’” was “limited” (emphasis added)). Additionally, the
district court had structured Mr. Uriarte’s sentence on the basis of an
Alleyne error, and we determined that it was impossible to “unbundle”
this error from the rest of his sentence. Cardena, 842 F.3d at 1001–02
(noting that the district court used the mandatory minimum as the
starting point of its calculation); see also United States v. White, 406 F.3d
827, 832 (7th Cir. 2005) (“We recognize that in a sentencing
determination potential enhancements are inter-connected and the
district court’s original sentencing intent may be undermined by altering
one portion of the calculus.”); cf. Pepper, 562 U.S. at 507) (“[A]n appellate
court when reversing one part of a defendant’s sentence ‘may vacate the
entire sentence.’” (quoting Greenlaw v. United States, 554 U.S. 237, 253
(continued … )
No. 19-2092 7
II
DISCUSSION
A.
Mr. Uriarte’s case presents a straightforward factual
situation and an equally straightforward legal issue for our
resolution.
At the time of the enactment of the First Step Act,
Mr. Uriarte was a convicted, but unsentenced, federal
defendant. He was awaiting sentencing. An earlier
sentencing proceeding, conducted before the enactment of
the First Step Act, had resulted in a sentence that we decided
could not stand. We vacated that sentence, rendering it a
nullity, and directed the district court to resentence
Mr. Uriarte. See Cardena, 842 F.3d at 1000–02; Pepper v. United
States, 562 U.S. 476, 508 (2011) (Vacatur “wipe[s] the slate
clean.”); United States v. Barnes, 948 F.2d 325, 330 (7th Cir.
1991) (“[T]he effect of the order to vacate was to nullify
[Mr. Uriarte’s] sentence.”). While Mr. Uriarte was awaiting
sentencing, Congress enacted the First Step Act.
The Act’s language is also quite simple. Congress
amended the law so that contemporaneous § 924(c)
convictions no longer trigger a 25-year mandatory minimum
sentence. First Step Act of 2018, § 403(a), Pub. L. No. 115-391,
132 Stat. 5194, 5221–5222 (Dec. 21, 2018). The cases to which
the amendment applies are set forth in § 403(b), which states:
( … continued)
(2008))). Thus, our remand in Cardena required that the district court
conduct a plenary resentencing.
8 No. 19-2092
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.
When Congress drafted this language, it departed explicitly
from the usual rule that criminal sentencing statutes are
applicable only to crimes committed after the effective date
of the statute. See Dorsey v. United States, 567 U.S. 260, 272–73
(2012) (explaining the default rule that, pursuant to the
federal saving statute, 1 U.S.C. § 109, the reduced penalties
of a criminal statutory amendment are generally not
applicable to offenses committed before the statute was
enacted).
Congress thereby ensured that all individuals awaiting
sentencing in the United States courts on the effective date of
the Act would be sentenced in accord with the policy
decisions it had just made. To accomplish this goal,
Congress made no distinction between defendants who had
never been sentenced and those whose sentence had been
vacated fully and who were awaiting the imposition of a
new sentence. In this way, Congress stanched, to the degree
that it could without overturning valid and settled
sentences, the mortmain effect of sentencing policies that it
considered no longer in the Nation’s best interest. It ensured,
moreover, all persons awaiting sentencing on the effective
date of the Act would be treated equally, a value long
cherished in our law. Id. at 276–77.
This interpretation is both straightforward and
compatible with the purpose of the First Step Act. We begin
No. 19-2092 9
with the language at issue here: “if a sentence for the offense
has not been imposed as of such date of enactment.”
§ 403(b). Congress writes statutes against the backdrop of
the existing legal landscape. The Supreme Court has
reminded us that our “elected representatives, like other
citizens, know the law.” Cannon v. Univ. of Chi., 441 U.S. 677,
696–97 (1979). When Congress crafted this statutory
language, it well understood that vacating a sentence
“wipe[s] the slate clean.” Pepper, 562 U.S. at 508; see also
United States v. Mobley, 833 F.3d 797, 802 (7th Cir. 2016)
(“When we vacate a sentence and order a full remand, the
defendant has a ‘clean’ slate—that is, there is no sentence
until the district court imposes a new one.”). We presume
that Congress is aware of the established meaning of legal
terms. NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)
(“Where Congress uses terms that have accumulated settled
meaning under either equity or the common law, a court
must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of
these terms.”).
Here, Congress has not given any indication that it
intended to depart from settled principles. See Chambers v.
NASCO, Inc., 501 U.S. 32, 47 (1991). Therefore, we read
§ 403(b) against the background principle that a court
resentences “on a clean slate.” Krieger v. United States, 842
F.3d 490, 505 (7th Cir. 2016). Nothing in the text of the
statute suggests that Congress intended to create an
exception to the ordinary effect of the vacatur of a sentence.
Indeed, it is clear that the statute reflects a congressional
intention that its policy decision apply to both pre-Act
offenders who have never been sentenced and to pre-Act
offenders whose sentences had been vacated before the date
10 No. 19-2092
of enactment, but who had not been resentenced as of that
3
date.
Whether an unsentenced defendant falls into one group
or the other, he lacks a sentence. The statutory language
makes clear that, on sentencing day, both should be treated
under the same congressional policy.
B.
Despite this straightforward application of the text,
which is compatible with the statute’s manifest remedial
purpose, it is possible, to borrow a phrase from Lewis
Carroll, to take select words of the statute and “pay them
4
extra” to come up with a plausible alternative reading. This
approach introduces a significant amount of ambiguity and
internal contradiction into the basic interpretative inquiry.
Let us see why this alternative approach falls on its own
sword.
We could take the phrase “a sentence … has not been
imposed,” § 403(b), and read it—as the Government
proposes—as referring to the sentence that we held null and
3 Although Mr. Uriarte, who was sentence-less when the First Step Act
was enacted, falls neatly within the statute’s language, the same would
not be true for a defendant who was under a sentence at the time of
enactment, but subsequently had his sentence vacated. Nevertheless,
that scenario is not before us.
4 Lewis Carroll, Through a Looking-Glass and What Alice Found There 133
(Boston, Thomas Y. Crowell & Co. 1893) (“‘When I make a word do a lot
of work like that,’ said Humpty Dumpty, ‘I always pay it extra.’”). When
applying plain-meaning methodology, one should not have to pay
words extra.
No. 19-2092 11
void long before the enactment of the First Step Act. The first
issue with this approach is that it would require, of course,
that we read this statutory phrase solely through an
historical lens and pay no attention at all to a “legal lens.”
But, as we already have explained, Congress writes statutes
against the background of existing law, and nothing in the
statutory language suggests that Congress meant to abandon
its usual course of legislating in light of existing law.
We also could pay the words of the statute a great deal
extra by departing completely from the text and invoking
our own policy preferences. In United States v. Hodge, the
Third Circuit, after deciding that the defendant had not been
granted a full resentencing, wrote in pure dicta that
“drawing the line at initial-sentence imposition is preferable
to drawing the line at ultimate-sentence imposition. If we let
all defendants awaiting resentencing capitalize on the First
Step Act, we would favor defendants whose appeals—for
whatever reason—took longer to resolve.” 948 F.3d 160, 164
(3d Cir. 2020).
Preferable? To whom? Neither the Third Circuit nor the
Seventh Circuit has the prerogative of policy choice in this
matter. As the Supreme Court noted in Dorsey, and as we
noted in Pierson, any reduction of criminal penalties will
involve difficult line drawing with respect to pending cases.
Dorsey, 567 U.S. at 280; United States v. Pierson, 925 F.3d 913,
927 (7th Cir. 2019), vacated on other grounds, 140 S. Ct. 1291(2020). Here, Congress, attempting to cure what it saw as an
inappropriate sentencing structure, determined that its
revision should control any situation where a district court
still had to impose a sentence. Considering that Congress
had determined that the earlier sentencing structure resulted
12 No. 19-2092
in sentences that were too long and unfair, it is difficult to
fault Congress for ensuring that those sentences would not
be imposed on defendants yet to be sentenced. It wanted the
unfair practice stopped upon enactment. Period.
Nor should we ignore the Supreme Court’s discussion in
Dorsey that Congress generally tries to avoid “radically
different sentences” for individuals “who each engaged in
the same criminal conduct … and were sentenced at the same
time.” Dorsey, 567 U.S. at 276–77 (emphasis added).
There is no reason to think that Congress excluded from
its remedy pre-Act offenders facing plenary resentencing.
Pre-Act offenders whose sentences have been vacated are
similarly situated to individuals who have never been
sentenced. The text of the Act is silent as to any intent of
Congress to inflict on them the exact harsh and expensive
mandatory minimum sentences that § 403 restricts and
reduces. That result would be fundamentally at odds with
the First Step Act’s ameliorative nature. When “construing a
statute, courts ought not deprive it of the obvious meaning
intended by Congress, nor abandon common sense.” United
States v. Bhutani, 266 F.3d 661, 666 (7th Cir. 2001) (citation
omitted).
If we are striving to pay the text extra, there is one more
argument that we might tease out of the text. We could rest
on the fact that the statute turns on the imposition of “a
sentence,” not “the sentence,” “the final sentence,” or “a
sentence that continues to legally bind the defendant.”
According to this argument, because “a” is an indefinite
article, it “points to a nonspecific object, thing, or person that
No. 19-2092 13
5
is not distinguished from the other members of a class.”
Therefore, the argument goes, the phrase “a sentence” refers
to the long-ago vacated sentence rather than the sentence to
be imposed by the sentencing court in the future.
To make this one-letter article support the weight of a
“plain meaning” argument, we would have to pay it much
more than a little extra. The Government draws significance
from the fact that, if Congress had intended § 403 to apply to
cases which had not reached a final disposition, “it easily
6
could have” employed language such as “the final
sentence” or “a sentence that continues to legally bind the
defendant.” By the same token, however, one could draw
significance from the fact that Congress did not use the
words “an original sentence” or “an initial sentence.”
Congress did not qualify the terms of the statute because it
clearly applied to all defendants awaiting a valid sentence at
the time of its enactment. The Government’s reading places
great weight on a single article, “a.” Yet the text of the First
Step Act gives reason to doubt that the word “a” was
intended to carry such import. Had Congress intended the
phrase “a sentence” to convey a very broad meaning, it
could have used the word “any,” as it did earlier in the same
sentence: “This section … shall apply to any offense … if a
sentence … has not been imposed … .” § 403(b) (emphasis
added).
5 BRYAN A. GARNER, GARNER’S MODERN ENGLISH USAGE 991 (4th ed.
2016).
6 Appellee’s Br. 16.
14 No. 19-2092
Further, the surrounding text of the statute indicates that
Congress intended § 403 to apply to all defendants awaiting
sentence at the time of its enactment. Courts have “long
refused to construe words ‘in a vacuum.’” Gundy v. United
States, 139 S. Ct. 2116, 2126 (2019) (quoting Davis v. Michigan
Dep’t of Treasury, 489 U.S. 803, 809 (1989)). “[R]easonable
statutory interpretation must account for both ‘the specific
context in which … language is used’ and ‘the broader
context of the statute as a whole.’” Util. Air Reg. Grp. v. EPA,
573 U.S. 302, 321 (2014) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997)).
Section 403 is distinctive in that it contains a provision
that specifically addresses its application to pending cases.
Congress took great care to ensure that defendants who had
been convicted but not sentenced would not be denied the
benefits of § 403. Congress made crystal clear that § 403
reaches all defendants whose sentences had not been
imposed before enactment—even those who had been
convicted before the Act. The text gives us no reason to
believe that Congress excluded from this expansive reach
certain defendants awaiting sentencing just because those
defendants previously had received invalid sentences.
Paying extra to rely on this argument is a poor deal
7
indeed.
7 Because the plain language of the statute requires reversal of the
district court’s judgment, we need not address the rule of lenity.
However, if both readings render the text ambiguous, the rule of lenity
favors the interpretation set forth in this opinion. United States v. Bass,
404 U.S. 336, 348 (1971) (“[W]here there is ambiguity in a criminal
statute, doubts are resolved in favor of the defendant.”).
No. 19-2092 15
Just as we could pay the words of the statute extra to
support a meaning other than the obvious one, we could
also enlist our own precedent and “pay it extra” by forcing
the precedent to spread its dominion into unintended fields.
We could say, as the Government requests, that our recent
opinion in Pierson, 925 F.3d 913, is consistent with employing
an exclusively historical lens to the Act’s use of the word
“imposed.” The Government’s argument relies heavily on
our statement in Pierson that, “[i]n common usage in federal
sentencing, a sentence is ‘imposed’ in the district court,
regardless of later appeals.” Id. at 927.
To use Pierson as a weight-bearing pillar, we would have
to pay it a great deal extra. Pierson addressed an entirely
different question. Pierson appealed his original sentence
and, while his appeal was pending, the First Step Act
became effective. We held, correctly, that because Pierson
had a sentence in place at the time of the Act’s enactment,
the Act did not apply to him. Pierson’s situation gave us no
cause to consider whether plenary resentencing awaited
Pierson in the future.
Moreover, the language from Pierson, “regardless of later
appeals,” 925 F.3d at 927, has never been construed to apply
to defendants whose sentences were vacated. Other cases
that have relied upon Pierson for this principle have involved
a defendant either directly appealing his sentence or seeking
a reduction of a sentence that was imposed long before the
8
Act’s enactment. In Pierson, we held that “the Act cannot
8 See United States v. Gonzalez, 949 F.3d 30, 42–43 (1st Cir. 2020), petition
for cert. filed (U.S. June 22, 2020) (No. 19-8783); United States v. Aviles, 938
F.3d 503, 510 (3d Cir. 2019) (“Congress did not refer to ‘finality,’ and
(continued … )
16 No. 19-2092
justify a reduction” to a sentence that was imposed prior to
the Act. United States v. Jackson, 940 F.3d 347, 353 (7th Cir.
2019). Pierson did not address the situation here: whether the
Act applies to a defendant who was not subject to a sentence
when the Act became effective.
Pierson is consistent with Congress’s intent not to reopen
finished proceedings because of the change in the law
effected by the First Step Act. In choosing not to write
§ 403(b) to allow reductions to valid sentences that already
had been imposed, Congress expressed a policy preference
in favor of settled expectations and ease of administration.
Nevertheless, in crafting clarifying legislation—in
attempting to “set things right”—Congress naturally wanted
to reach all cases where there was not already a sentence in
( … continued)
imposition and finality are two different concepts.”); United States v.
Jordan, 952 F.3d 160, 171–72 (4th Cir. 2020), petition for cert. filed (U.S. Sept.
1, 2020); United States v. Richardson, 948 F.3d 733, 748–50 (6th Cir. 2020),
petition for cert. filed (U.S. July 1, 2020) (No. 19-8878); United States v.
Jackson, 940 F.3d 347, 353 (7th Cir. 2019); United States v. Sullivan, 781 F.
App’x 553, 554 (7th Cir. 2019); United States v. Ruff, 795 F. App’x 796, 797
(11th Cir. 2020); United States v. Gelin, 810 F. App’x 712, 726 (11th Cir.
2020), petition for cert. filed (U.S. July 27, 2020) (No. 20-5178); United States
v. Garcia, No. 17-13992, 2019 WL 7503482, *1 (11th Cir. July 9, 2019);
Young v. United States, 943 F.3d 460, 462 (D.C. Cir. 2019); United States v.
Williams, 03-CR-795, 2019 WL 3842597, at *4 n.5 (E.D.N.Y. Aug. 15, 2019);
United States v. Garcia, No. 6:05-cr-00006-1, 2019 WL 4039638, at *1 (W.D.
Va. Aug. 27, 2019); United States v. King, No. 1:03-cr-00182, 2020 WL
1274998, at *1–2 (S.D. Ind. Mar. 16, 2020); State v. Hinton, No. 2019-097,
2020 WL 4380703, at *4 (Vt. July 31, 2020). United States v. Hodge, 948 F.3d
160 (3d Cir. 2020), discussed supra at page 11, is also distinguishable
because it involved a limited remand.
No. 19-2092 17
place. There were no countervailing considerations
suggesting that Congress wanted to deprive anyone without
a set sentence of the benefit of these new, preferred
sentencing standards. And, as we already have noted,
Congress generally strives 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 276–77.
III
The First Step Act is an historic, bipartisan attempt by
Congress to take the lessons of the past and to formulate a
9
new sentencing policy for the United States. Although it
elected not to reopen sentences in place on the date of
enactment, Congress carefully crafted a provision to ensure
that its new policy determination effectively controlled
every sentence after that date. We may disagree with where
and how Congress drew the line, but it was Congress’s
prerogative to draw that line. It had a difficult task. We
ought not make the task more difficult by ignoring the clear
command of the legislative directive.
9 In a parallel case pending before the Ninth Circuit, members of the
Legislative Branch, who were the principal drafters of the First Step Act,
submitted an amici curiae brief seeking to preserve Congress’s “intent to
allow pre-Act offenders whose sentences are vacated to benefit from the
Act’s ameliorative provisions at resentencing.” Brief for United States
Senators Richard J. Durbin, Charles E. Grassley, and Cory A. Booker as
Amici Curiae in Support of the Defendant-Appellant, 2–3, United States v.
Mapuatuli (9th Cir.) (No. 19-10233).
18 No. 19-2092
Accordingly, the judgment of the district court is
affirmed.
AFFIRMED
No. 19-2092 19
BARRETT, Circuit Judge, with whom BRENNAN and
SCUDDER, Circuit Judges, join, dissenting. Hector Uriarte was
initially sentenced for firearm offenses before Congress
passed the First Step Act, but we vacated his sentence on un-
related grounds before the Act’s effective date. United States v.
Cardena, 842 F.3d 959 (7th Cir. 2016). Despite the district
court’s imposition of the initial sentence, the majority con-
cludes that “a sentence for the offense ha[d] not been imposed
as of [the] date of enactment” in Uriarte’s case. See First Step
Act § 403(b). I respectfully disagree.
As the majority sees it, a sentence “has not been imposed”
as of the date of enactment if on that date the defendant is not
subject to a legally binding sentence. The defendant might be
in that position because he has never been sentenced; he
might be in that position because he is waiting to be
resentenced. Either way, the majority says, the defendant is
sentence-free on the date that counts—the date that the First
Step Act passed.1
1 Because Uriarte was not subject to a legally binding sentence on the
date of enactment, this case does not present the question whether a post-
enactment vacatur would retroactively have the same effect—that is,
whether the post-enactment nullification of a sentence would also mean
that for legal purposes “a sentence ha[d] not been imposed” as of the date
of enactment. Cf. United States v. Jackson, No. 15-cr-453, 2019 WL 2524786(N.D. Ohio June 18, 2019) (addressing that factual scenario). Under that
broader theory, the Act would apply to all plenary resentencings after the
Act’s effective date, regardless of the date of vacatur. It bears emphasis
that nothing in the majority opinion—which turns entirely on the fact that
Uriarte was not subject to a sentence on the Act’s effective date—suggests
an answer to that question. On the contrary, the majority expressly re-
frains from addressing it. See Maj. Op. at 10 n.3.
20 No. 19-2092
I find the government’s reading of the relevant language
far more persuasive. The government argues that “a sen-
tence … has not been imposed” as of the date of enactment
when, as a matter of historical fact, no sentence has ever been
imposed before that date. Uriarte indisputably had been sen-
tenced before the First Step Act took effect. Our subsequent
vacatur of his sentence does not change that fact, so, the gov-
ernment contends, the Act does not apply to Uriarte.
These competing readings reflect different takes on the
statute’s use of the present-perfect tense in the phrase “has
not been imposed.” The present-perfect tense “denotes 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). The government reads the phrase “has not been im-
posed” as denoting an act that has not been completed. That
act—sentencing—had been completed in Uriarte’s case, even
though it was subject to repetition; so, the government says,
the First Step Act does not apply. The majority, by contrast,
reads the phrase as denoting a condition that does not exist
on the date of enactment. Because that condition—being sub-
ject to a valid sentence—did not exist for Uriarte on the rele-
vant date, the majority concludes that the Act governs his re-
sentencing.
The grammatical structure conceivably leaves some room
for either reading, but only the government’s is consistent
with the specific words used in the sentence. First and fore-
most, the statute draws the line on the date when a sentence
was “imposed.” In the context of sentencing, “imposed” con-
notes an action by a district court, rather than the status of a
defendant. See Young v. United States, 943 F.3d 460, 463 (D.C.
Cir. 2019) (“[I]n ordinary usage a sentence is ‘imposed’ when
No. 19-2092 21
a district court pronounces it.”). That is why it is perfectly co-
herent to describe the procedural posture of a case by saying,
“a sentence was imposed last year, but it has since been va-
cated on appeal.” The imposition of a sentence is a historical
fact that can be disaggregated from the legal status of the sen-
tenced person. And the statute’s use of a verb that describes
the action of the district court puts the focus on the historical
fact.
Consistent with this understanding, our opinion in United
States v. Pierson interpreted the word “imposed” to denote a
past act, not an ongoing condition. 925 F.3d 913, 927–28 (7th
Cir. 2019). In determining whether a sentence had been “im-
posed” as of the date of enactment, we did not examine
Pierson’s legal status to determine whether he was subject to
an ongoing sentence on that date. Nor did we consider
whether some plenary resentencing awaited Pierson in the fu-
ture. Instead, we reasoned that a sentence had been imposed
in the past. We explained, “a sentence is ‘imposed’ in the dis-
trict court, regardless of later appeals.” Id. at 927. And later
we noted that a sentence is imposed “when the district court
sentenced the defendant.” Id. at 928. That language treats the
district court’s action, not the defendant’s legal status, as the
relevant marker. The former is a historical fact; the latter is a
condition that is subject to change as a result of “later ap-
peals.” The Third Circuit has read both the statute and Pierson
the same way. United States v. Hodge, 948 F.3d 160, 163–64 (3d
Cir. 2020) (asserting that “a sentence is ‘imposed’ … ‘within
the meaning of’ the First Step Act once ‘a sentencing order has
been entered by a district court’” (quoting Pierson, 925 F.3d at
927–28)); see also id. at 163 (“[W]e conclude [that] the First Step
Act intentionally subjected any defendant who had any sen-
tence imposed to the original § 924(c) mandatory minimum,
22 No. 19-2092
even if their sentence was subsequently modified.” (emphasis
added)).2
As further support for the government’s reading, the stat-
ute turns on the imposition of “a sentence,” not “the sentence,”
“the final sentence,” or “a sentence that continues to legally
bind the defendant.”3 The word “a” is an indefinite article—
that is, it “points to a nonspecific object, thing, or person that
is not distinguished from the other members of a class.”
BRYAN A. GARNER, GARNER’S MODERN ENGLISH USAGE 991
(4th ed. 2016). The statute’s use of the word “sentence” in a
nonspecific sense is inconsistent with the majority’s conten-
tion that the statute refers exclusively to an extant sentence.
Though the majority resists the word’s ordinary meaning, the
indefinite article “a” is broad enough to refer to any sentence
2 In Hodge, the Third Circuit had affirmed the defendant’s sentence as
to his § 924(c) offense, vacated it as to his territorial offenses, and re-
manded it to the district court for partial resentencing. 948 F.3d at 161–62.
The defendant was still awaiting partial resentencing on the First Step
Act’s effective date, but because he remained subject to his § 924(c) sen-
tence, that case is at least arguably distinguishable from this one—alt-
hough I later address the possibility that the scope of our vacatur and re-
mand in Cardena left Uriarte in the same position as the defendant in
Hodge. Nonetheless, the Third Circuit’s reasoning did not turn on that dis-
tinction. Instead, its reasoning is consistent with mine: it treated the dis-
trict court’s act of imposing a sentence, not the defendant’s legal condition,
as determinative. See also id. at 162 (“[W]e hold [that] the new § 924(c)
mandatory minimum does not apply to defendants initially sentenced be-
fore the First Step Act’s enactment.” (emphasis added)).
3 By contrast, in the immediately preceding subsection of the First Step
Act, Congress made the application of mandatory minimums contingent
on a “final” conviction. First Step Act § 403(a). It could easily have im-
posed the same requirement on the triggering “sentence” in sec-
tion 403(b).
No. 19-2092 23
that has been imposed for the offense, even one that was sub-
sequently vacated. Rather than being strained, as the majority
suggests, this nonspecific meaning is consistent with common
usage. If asked in 2016 whether “a sentence” had been im-
posed on Uriarte, one could easily respond “yes, but it was
vacated on appeal.”
Dismissing what it perceives to be an excessive focus on
the statute’s language, the majority grounds its reasoning in
nontextual background principles. In particular, it asserts that
resentencing happens on a “clean slate” after vacatur and that
a vacated initial sentence therefore no longer carries any legal
effect. See Krieger v. United States, 842 F.3d 490, 505 (7th Cir.
2016). Congress, it claims, must have legislated against this
background principle when it enacted the First Step Act. And
finding no evidence that Congress intended to depart from
this principle, the majority presents its interpretation as self-
evident.
There are several problems with this reasoning, and the
first is that the majority significantly overreads what it means
to say that the defendant will be sentenced on a “clean slate.”
A complete vacatur wipes the slate clean insofar as the de-
fendant will be sentenced anew. Pepper v. United States, 562
U.S. 476, 507–08 (2011) (holding that the law of the case doc-
trine does not bind the district court in a de novo resentenc-
ing); United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir.
1992) (“[T]he district court will be writing on a clean slate and
may entertain any and all objections, even those not raised at
the earlier sentencing.”). But a complete vacatur does not re-
quire the district court to proceed as if the initial sentencing
never happened. In fact, the Sentencing Reform Act instructs
24 No. 19-2092
district courts to do the very opposite: a district court impos-
ing a sentence on remand must apply the Sentencing Guide-
lines “that were in effect on the date of the previous sentencing of
the defendant prior to the appeal.” 18 U.S.C. § 3742(g)(1) (em-
phasis added); see also Dorsey v. United States, 567 U.S. 260, 275
(2012) (describing the Sentencing Reform Act as a background
principle against which Congress legislates). The Sentencing
Reform Act does not control this case because the disputed
part of Uriarte’s sentence is dictated by statute rather than de-
rived from the Guidelines. Still, the Act’s default rule for re-
sentencing—that the Guidelines apply as they existed at the
time of the initial sentencing—belies the majority’s claim that
Congress legislates against a background understanding that
a vacatur erases the initial sentence for all purposes. On the
contrary, it’s not unusual for the date of the initial sentencing
to control the law applicable to a resentencing—even when
more favorable law is enacted in the interim. See United States
v. Hughes, 733 F.3d 642, 645–47 (6th Cir. 2013) (holding the Fair
Sentencing Act inapplicable to a defendant who was awaiting
resentencing on the Act’s effective date).
But even if the majority’s “clean slate” principle were
sound, a background principle cannot overcome statutory
text.4 The majority’s interpretation turns almost entirely on
what it thinks Congress must have considered during the leg-
islative process. See Walton v. United Consumers Club, Inc., 786
4It bears emphasis that because the traditional tools of statutory in-
terpretation yield an answer to the statute’s meaning, the rule of lenity
does not apply. See United States v. Shabani, 513 U.S. 10, 17 (1994) (“The
rule of lenity … applies only when, after consulting traditional canons of
statutory construction, we are left with an ambiguous statute.”).
No. 19-2092 25
F.2d 303, 310 (7th Cir. 1986) (“Courts should confine their at-
tention to the purposes Congress sought to achieve by the
words it used. We interpret texts.”). It posits that Congress
wanted to treat a vacatur as giving a defendant a fresh start
on the law as well as on the weighing of the facts so that the
benefit of this remedial statute would extend more broadly.
But every statute requires a resolution of competing policy in-
terests, and Congress “may, for all we know, have slighted
policy concerns on one or the other side of the issue as part of
the legislative compromise that enabled the law to be en-
acted.” Artuz v. Bennett, 531 U.S. 4, 10 (2000). And on the other
side of that compromise are some benefits to Congress’s deci-
sion that the majority does not acknowledge.
For example, the majority’s approach puts a great deal of
weight on the precise decretal language of an appellate
opinion. Consider a potential problem posed by the appellate
opinion in this very case. The majority says that in Cardena,
we vacated Uriarte’s sentence as a whole, albeit with
instructions clarifying that the scope of the remand only
covered the first firearm offense. See Cardena, 842 F.3d at 1002
(explaining that Uriarte is “entitled to resentencing” because
his entire below-guidelines sentence was anchored to the
Alleyne error on the sentence for the first firearm offense). I
have assumed that this reading of Cardena is correct because
it does not affect my reasoning in this case. But the final words
of Cardena invite another possibility—that we vacated only
the sentence for Uriarte’s first firearm offense, leaving the
remainder of the sentence—including the sentence for the
second firearm offense—intact. See id. (“We VACATE the
sentences of Tony Sparkman … and Hector Uriarte on count 8
[the first firearm offense] and REMAND for resentencing
consistent with this opinion.” (emphasis added)). The
26 No. 19-2092
practical difference between a narrow vacatur and a complete
vacatur can be slight. See United States v. Barnes, 660 F.3d 1000,
1006 (7th Cir. 2011) (clarifying that an opinion vacating an
entire sentence can still limit the scope of a remand). But
under the majority’s interpretation of section 403, the
applicability of the First Step Act to Uriarte’s second firearm
offense would depend entirely on which way we read
Cardena. If we vacated his entire sentence, he was not subject
to a sentence for any firearm offense on the date that the First
Step Act was enacted. But if we only vacated the sentence for
the first firearm offense, then the sentence for Uriarte’s second
firearm offense was not “wiped clean,” and he remained
subject to it on the date of enactment. Cf. Hodge, 948 F.3d at
163 & n.4 (holding the First Step Act inapplicable when a
limited vacatur left the federal firearm offense intact). It takes
the majority a three-page footnote to parse whether the
remand in Uriarte’s case was limited or plenary. Drawing the
line at the date of the initial sentencing, by contrast, makes it
much easier to determine whether the Act applies to a given
defendant. I am not persuaded by the majority’s assumption
that Congress must have subordinated this administrability
advantage to the policy advantages that the majority invokes
in support of its interpretation.
After all, the superiority of one policy advantage over an-
other is not self-evident—instead, it lies in the eye of the be-
holder. The majority champions its interpretation as the most
equitable one because it ensures that “all persons awaiting
sentencing on the effective date of the Act would be treated
equally, a value long cherished in our law.” Maj. Op. at 8. But
the majority’s interpretation produces its own problematic
disparities, as illustrated by this very case.
No. 19-2092 27
Uriarte had a codefendant, Tony Sparkman. See United
States v. Sparkman, No. 17-3318, 2020 WL
5247575, --- F.3d --- (7th Cir. 2020). They were convicted for
the same offenses, both were sentenced before the First Step
Act passed, and both sentences were vacated in the same con-
solidated opinion. But Uriarte pushed his resentencing date
back by seeking several continuances so that he could fire and
then rehire counsel for his case. The majority’s interpretation
gives Uriarte a sentence 20 years shorter than Sparkman’s—
despite, it should be noted, Uriarte’s greater participation in
the crime—because he delayed the court with continuances.
See Hodge, 948 F.3d at 164 (considering a similar hypothetical
disparity and rejecting an interpretation that might allow it);
Hughes, 733 F.3d at 646 (noting that the “disparities that the
Court cited in Dorsey were those between initial sentencings
that occurred on the same day,” as opposed to equally objec-
tionable disparities “between initial sentencings and sen-
tencings ‘upon remand.’”). As the Third Circuit observed in
United States v. Hodge, “drawing the line at initial-sentence im-
position is preferable to drawing the line at ultimate-sentence
imposition. If we let all defendants awaiting resentencing cap-
italize on the First Step Act, we would favor defendants
whose appeals—for whatever reason—took longer to re-
solve.” Id. The majority thinks it is most equitable to treat Uri-
arte as similarly situated to defendants awaiting sentencing in
other cases rather than to the codefendant with whom he was
tried and initially sentenced. I am much less confident either
that this is the most equitable result or that Congress shared
the majority’s view. Speculating about congressional desires
is a dicey enterprise, which is one reason among many that
we should stick to the text.
28 No. 19-2092
As we have said before, “[a]ny reduction in criminal pen-
alties or in a Sentencing Guideline can pose difficult line-
drawing in applying the reduction to pending cases.” Pierson,
925 F.3d at 927. Here, Congress picked a line: the applicability
of the First Step Act turns on whether a sentence had been
imposed on the defendant before the date of enactment. The
majority is certainly correct that the vacatur of Uriarte’s initial
sentence altered his legal status and required the court to re-
sentence him de novo. But that does not change the historical
fact that the district court did in the past impose a sentence
for his firearm offense. Nor does it mean that what was im-
posed by the court in 2013 was not then “a sentence.” Vacatur
may metaphorically “wipe the slate clean,” but it is not a time
machine. Under the plain text of the statute, the First Step Act
does not apply to Uriarte.