United States v. Kenneth Jackson, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0091p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee/Cross-Appellant, │
> Nos. 19-3623/3711
│
v. │
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KENNETH J. JACKSON, JR., │
Defendant-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:15-cr-00453-1—Patricia A. Gaughan, District Judge.
Decided and Filed: April 22, 2021
Before: BATCHELDER, MOORE, and BUSH, Circuit Judges.
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COUNSEL
ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant/Cross-Appellee. Matthew B.
Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee/Cross-
Appellant. Alec Schierenbeck, O’MELVENY & MYERS LLP, New York, New York, Nathan
Freed Wessler AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York for Amici Curiae.
BUSH, J., delivered the opinion of the court in which BATCHELDER, J., joined.
MOORE, J. (pp. 7–9), delivered a separate dissenting opinion.
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OPINION
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JOHN K. BUSH, Circuit Judge. As judges, we assume that Congress says what it means
and means what it says. That is why statutory interpretation begins with the text. FNU Tanzin v.
Nos. 19-3623/3711 United States v. Jackson Page 2
Tanzir, 141 S. Ct. 486, 489 (2020). When Congress reduced the scope of 18 U.S.C. § 924(c)’s
extreme penalties, it said how the amendments apply to past crimes. They apply for a defendant
on whom “a sentence for the offense has not been imposed as of” December 21, 2018. First Step
Act § 403(b) (codified at 18 U.S.C. § 924 notes). As of that day, a sentence had been imposed
on Kenneth Jackson, Jr. That we later vacated his first sentence does not alter Jackson’s status
on the day the First Step Act became law. For that reason, we again vacate his sentence and
remand for resentencing.
I.
A. STATUTORY BACKGROUND
18 U.S.C. § 924(c) imposes a mandatory seven-year sentence the first time a person
brandishes a firearm in connection with a crime of violence. Id. § 924(c)(1)(A)(iii). If that
person does so a second time, the mandatory sentence skyrockets to twenty-five years. Id.
§ 924(c)(1)(C)(i). Before December of 2018, that enhanced sentence applied even when a
defendant’s two § 924(c) violations occurred in the same case, so that the first conviction
received a seven-year minimum and the second a twenty-five year minimum. See United States
v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019). In the First Step Act, Congress changed that rule.
Now § 924(c)(1)(C)’s enhancement applies only after a prior conviction under § 924(c) has
become final. Congress also made that change retroactive to a narrow class of defendants: those
for whom “a sentence for the offense has not been imposed as of such date of enactment.” First
Step Act § 403(b). That provision displaced the default rule that amendments to statutes apply
only to defendants who had not yet committed their crimes as of the date the statute changes.
See 1 U.S.C. § 109.
B. PROCEDURAL BACKGROUND
In May of 2017, a jury convicted Jackson and the district court sentenced him on three
counts of carjacking and, as relevant here, three counts of brandishing a firearm during a crime
of violence under 18 U.S.C. § 924(c). United States v. Jackson, 918 F.3d 467, 476–77 (6th Cir.
2019). While Jackson’s appeal was pending, Congress enacted the First Step Act. Three months
later, we vacated one of his three § 924(c) convictions and remanded the case for resentencing.
Nos. 19-3623/3711 United States v. Jackson Page 3
Id. at 494. At the resentencing hearing, the district court determined that the First Step Act’s
amendments to § 924(c) apply retroactively to someone who, like Jackson, had his sentence
vacated after the Act became law. United States v. Jackson, No. 1:15 CR 453-001, 2019 WL
2524786, at *1 (N.D. Ohio, June 18, 2019). It sentenced him accordingly, reducing the 32-year
mandatory minimum sentences he faced under § 924(c) to 14 years. But because Jackson no
longer faced 57 years of mandatory minimum sentences, the district court increased his sentence
for the three carjackings from 87 months’ imprisonment to 108 months. Jackson appealed,
challenging that 21-month increase, and the government cross-appealed, challenging the district
court’s decision to apply the First Step Act to Jackson’s § 924(c) convictions. Because we
conclude that the district court should not have applied the amended § 924(c), we do not reach
Jackson’s arguments.
II.
We interpret statutes de novo. United States v. Jeffries, 958 F.3d 517, 519 (6th Cir.
2020). Our task begins with the statutory text. Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019).
When, as here, the text is clear, it ends there as well. Id.The relevant retroactivity provision reads: “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.” First Step
Act § 403(b). The date of enactment was December 21, 2018. Two textual clues clarify that
provision’s meaning. First, Congress’s decision to use the present-perfect tense makes
December 21, 2018 the date of inquiry. The present perfect “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). So the question whether a sentence “has been imposed” requires us to ask if the
sentencing process ended by the date of enactment. Second, Congress’s use of the indefinite
article “a” indicates that the statute does not refer only to the final sentence a defendant receives.
See Bryan A. Garner, Garner’s Modern English Usage 991 (4th ed. 2016). Thus, the
retroactivity provision’s text creates a straightforward test for retroactivity. We must look at
Jackson’s status as of December 21, 2018 and ask whether—at that point—a sentence had been
imposed on him.
Nos. 19-3623/3711 United States v. Jackson Page 4
We have applied that test in two published opinions. In United States v. Richardson,
Richardson argued that a sentence had not been imposed for his § 924(c) violations because he
had not yet exhausted his direct appeals. 948 F.3d 733, 748 (6th Cir. 2020). We rejected that
argument, holding instead that a sentence was imposed when the district court sentenced him.
Id. at 748–50. In United States v. Henry, we had to decide whether the same held true for a
defendant whose sentence had been vacated before the First Step Act became law. 983 F.3d 214,
216–17 (6th Cir. 2020). We determined that Henry’s pre-Act vacatur meant that on December
21, 2018, it was as if a sentence had never been imposed on him, so the retroactivity provision
applied to him. Id. at 222–23, 228. But in Henry, we recognized the crucial difference between
the question presented there and this exact case: Jackson’s sentence was vacated and his case
remanded “after the First Step Act’s enactment.” Id. at 222 & n.2 (citing the district court’s
opinion in this case).1
For that reason, this case follows Richardson. On the relevant date for retroactivity,
Jackson was in the exact same situation as Richardson: under sentence pending appeal.
Richardson, 948 F.3d at 738. That Jackson’s first appeal went better than Richardson’s does not
alter our inquiry under the retroactivity provision.
In arguing to the contrary, Jackson contends that when his sentence was vacated “his
sentence was rescinded, and there was no longer a sentence imposed on him until he was
resentenced.” That argument misconstrues the First Step Act’s retroactivity inquiry. That
Jackson was without a sentence for three months in 2019 does not change the fact that as of
December 21, 2018, a sentence had been imposed on him. After all, vacatur does not erase
Jackson’s prior sentence from history. Vacatur merely “make[s] void” the thing vacated.
Vacate, Black’s Law Dictionary (11th ed. 2019). When that thing becomes void, it is “of no
legal effect” anymore. Void, Black’s Law Dictionary (11th ed. 2019). But eliminating a
1In United States v. Uriarte, on which we relied heavily in Henry, 983 F.3d at 220–21, the en banc Seventh
Circuit offered a similar caveat. It explained that “[a]lthough 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,” 975 F.3d 596, 602 n.3 (7th
Cir. 2020) (en banc). In dissent, then-Judge Barrett emphasized that nothing in the Uriarte majority’s logic
addressed the factual scenario we face. Id. at 606 n.1 (Barrett, J., dissenting) (citing the district court’s decision in
this case).
Nos. 19-3623/3711 United States v. Jackson Page 5
sentence’s prospective legal effect only “wipe[s] the slate clean” looking forward. Pepper v.
United States, 562 U.S. 476, 507 (2011). It does not retroactively change Jackson’s status in the
prior months.
For that reason, we part ways with the Fourth Circuit’s contrary conclusion in United
States v. Bethea, --- F. App’x ---, 2021 WL 219201 (4th Cir. Jan. 21, 2021). There, our sister
circuit reasoned that because a district court vacated Bethea’s sentence, “a sentence cannot
legally be said to have been imposed until 2019.” Id. at *5. Based on that logic, it decided that
Bethea’s case did not meaningfully differ from our decision in Henry and the Seventh Circuit’s
Uriarte decision. Id. (“[I]t matters not when that vacatur occurred, because his only legally
effective sentence was imposed after the FSA’s enactment.”). But that analysis misconstrues our
Henry decision, where we explained that “[t]he better reading of ‘a sentence’ requires the
defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at
some point.” Henry, 983 F.3d 214 at 222. The Bethea majority also thought that if “Congress
intended to draw the line at individuals ‘initially sentenced’ before the FSA’s enactment, it
surely could have said so.” 2021 WL 219201, at *6. But Congress equally could have said “the
sentence,” or, clearer still, “the final sentence” or “an ultimate sentence.” See United States v.
Hodge, 948 F.3d 160, 163 (3d Cir. 2020). The mere observation that the statutory language
could be made clearer does not make it unclear in the first place.
In addition to the vacatur argument, amici2 contend that the First Step Act’s amendments
should apply to all resentencing hearings that occur after the date of enactment based on the
general “principle that a court is to apply the law in effect at the time it renders its decision.”
Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711 (1974). But Bradley qualified that general
principle in the rest of that sentence, noting that it applies only when there is no statutory
directive to the contrary. Id. More recently, in Dorsey v. United States, the Supreme Court
explained that the general savings statute that has been in place since 1871 provides the statutory
directive to the contrary for all statutory changes. 567 U.S. 260, 272 (2012). That statute
2The American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the
American Civil Liberties Union of Ohio Foundation, Due Process Institute, R Street Institute, and Americans for
Prosperity Foundation.
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provides that Congress’s amendments to “an older criminal statute shall not change the penalties
‘incurred’ under that older statute ‘unless the repealing Act shall so expressly provide.’” Id. at
272 (quoting 1 U.S.C. § 109). Here, the First Step Act did so expressly provide—but only for
defendants on whom a sentence had not been imposed as of December 21, 2018.
III.
For those reasons, we vacate Jackson’s sentence and remand for the district court to
sentence him under the version of § 924(c) that pre-dates the First Step Act of 2018.
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DISSENT
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KAREN NELSON MOORE, Circuit Judge, dissenting. The majority contends that
because Jackson was originally sentenced prior to the First Step Act’s enactment and we did not
vacate his sentence until afterwards, First Step Act § 403 does not apply at Jackson’s
resentencing in 2019. I disagree because the plain language, structure, and purpose of First Step
Act § 403 suggest that this provision applies to Jackson’s resentencing.
Two things changed between Jackson’s initial sentencing and now. In 2018, Congress
passed the First Step Act. With the First Step Act, the escalating mandatory-minimum sentences
for a second or subsequent 18 U.S.C. § 924(c) conviction applied only to a defendant who has a
prior final § 924(c) conviction. First Step Act, § 403(a) (codified at 18 U.S.C. 924(c)(1)(C)). In
a section entitled “Applicability to Pending Cases,” Congress extended this amendment “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.” First Step Act, § 403(b) (codified at
18 U.S.C. § 924 notes). Second, in 2019, we vacated Jackson’s conviction and remanded his
case for resentencing because he made a single choice to use or carry a firearm in connection
with a double carjacking, and therefore could not be convicted of two distinct violations of
§ 924(c). United States v. Jackson, 918 F.3d 467, 492 (6th Cir. 2019). At Jackson’s
resentencing, the district court applied § 403 to Jackson. See United States v. Jackson, No. 1:15
CR 453-001, 2019 WL 2524786, at *3 (N.D. Ohio June 18, 2019); R. 224 (Resent’g Tr. at 9)
(Page ID #2940). I see no reason to depart from the district court’s holding.
When we vacate a defendant’s sentence and remand for resentencing, the vacated
sentence is not “a sentence” for the purposes of the First Step Act. Our order vacating Jackson’s
sentence rendered Jackson’s initial sentence “in essence, a nullity.” Jackson, No. 1:15 CR 453-
001, 2019 WL 2524786, at *2; see also Black’s Law Dictionary (11th ed. 2019) (defining
“vacate” as “[t]o nullify or cancel; make void; invalidate”). We have clearly stated that a general
remand “effectively wipes the slate clean,” and “gives the district court authority to redo the
Nos. 19-3623/3711 United States v. Jackson Page 8
entire sentencing process.” United States v. McFalls, 675 F.3d 599, 606 (6th Cir. 2012).
We must “assum[e] [that] Congress is well aware of the background principle[s]” including the
effects of a vacatur and general remand, “when it enacts new criminal statutes.” Dorsey v.
United States, 567 U.S. 260, 274 (2012). The Fourth Circuit in United States v. Bethea, No.
19-4618, -- F. App’x --, 2021 WL 219201 (4th Cir. Jan. 21, 2021), interpreted First Step Act
§ 401, which includes an identical applicability provision to § 403, to cover a defendant whose
sentence had been vacated after the First Step Act’s enactment. The Fourth Circuit concluded
that the defendant’s “sentence is best understood as ‘imposed’ for purposes of the FSA on the
date of its reimposition, because the district court’s vacatur rendered his 2015 sentence a legal
nullity.” Id. at *4.
The majority contends that, although this court vacated Jackson’s prior sentence, “vacatur
does not erase Jackson’s prior sentence from history.” (Maj. Op. at 4). Taken to its logical
conclusion, however, this interpretation of vacatur “would put us in the unusual position of
giving effect to legal judgments subsequently vacated.” United States v. Henry, 983 F.3d 214,
223 (6th Cir. 2020). Extending First Step Act § 403 to Jackson avoids this illogical conclusion.
Further, the majority’s analysis of the retroactivity provision of First Step Act § 403 adopts a
reading of the text that we rejected in Henry. Specifically, the majority contends that
“Congress’s use of the indefinite article ‘a’ indicates that the statute does not refer only to the
final sentence a defendant receives.” (Maj. Op. at 3). In Henry, however, we cautioned against
“plac[ing] undue emphasis on this one-letter article.” 983 F.3d at 223; see also United States v.
Uriarte, 975 F.3d 596, 603–04 (7th Cir. 2020) (en banc) (analyzing and rejecting grammar
argument).
Moreover, the majority misconstrues the import of our recent decision in Henry. In
Henry, we did not reach the question of whether First Step Act § 403 applied to defendants
whose sentences were vacated after the First Step Act’s enactment because that question was not
before us. 983 F.3d at 222 & n.2. Nonetheless, the majority reads Henry’s statement that “[t]he
better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the
First Step Act’s enactment, not a sentence at some point” to preclude Jackson from relief under
First Step Act § 403. (Maj. Op. at 5) (quoting 983 F.3d at 222). To the extent that Henry is
Nos. 19-3623/3711 United States v. Jackson Page 9
relevant to Jackson’s case, it supports relief. We emphasized in Henry that § 403 does not apply
if the defendant has “a valid sentence at the time of the First Step Act’s enactment.” 983 F.3d at
222 (emphasis added). At the time of the First Step Act’s enactment, Jackson did not have a
legally valid sentence. Only when the district court resentenced him in 2019—after the First
Step Act’s enactment—did Jackson have a legally valid sentence.
Finally, the government argues that applying First Step Act § 403 to Jackson would lead
to inequitable outcomes. As we reasoned in Henry, however, “[s]entencing disparities are the
consequence of Congress’s decision to refrain from making § 403 fully retroactive. Given that
some disparities will exist in any event, they should not prevent [a defendant] from benefiting
from First Step Act § 403.” 983 F.3d at 228.
When we vacated Jackson’s sentence in 2019, we rendered Jackson’s sentence a legal
nullity for the purposes of First Step Act § 403. For this reason, I would affirm the district court,
which properly resentenced Jackson. I respectfully dissent.