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HEWITT v. UNITED STATES (2025)
United States Supreme Court
HEWITT v. UNITED STATES (2025)
No. 23-1002
Argued: January 13, 2025 Decided: June 26, 2025
Before the First Step Act was enacted in 2018, federal judges were required to sentence first-time offenders convicted of violating 18 U. S. C. §924(c)--a law that criminalizes possessing a firearm while committing other crimes--to "stacked" 25-year periods of incarceration. The First Step Act eliminated this harsh mandatory minimum penalty. Section 403(b) of the Act also made its more lenient penalties partially retroactive. Specifically, if a sentence "has not been imposed" upon an eligible §924(c) offender as of the date of the First Step Act's enactment, the Act applies. The question presented here concerns an edge case: What penalties apply when a §924(c) offender had been sentenced as of the Act's enactment, but that sentence was subsequently vacated, such that the offender must face a post-Act resentencing?
In 2009, petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross were convicted of multiple counts of bank robbery and conspiracy to commit bank robbery, along with corresponding §924(c) offenses for use of a firearm during a crime of violence. Each petitioner received a mandatory 5-year sentence for his first §924(c) count of conviction and, despite being first-time offenders, each received 25-year mandatory sentences on every §924(c) count beyond his first. Thus, each petitioner's sentence exceeded 325 years. Petitioners successfully challenged some of their convictions on direct appeal, and the Fifth Circuit vacated petitioners' sentences. In 2012, the District Court resentenced each petitioner to between 285 and 305 years on the counts that remained.
In 2019, the Court held that the "crime of violence" definition the Government routinely used to support some §924(c) convictions was unconstitutionally vague. See United States v. Davis,
On appeal, petitioners and the Government agreed that the First Step Act should have applied at petitioners' resentencings. The Fifth Circuit denied their joint request for vacatur. In that court's view, §403(b) applies only "to defendants for whom 'a sentence . . . ha[d] not been imposed' as of the enactment date." 92 F. 4th 304, 310. Because each petitioner had been sentenced (twice) prior to the Act's enactment, the panel concluded that petitioners were not eligible for the First Step Act's more lenient mandatory minimums.
Held: The judgment is reversed, and the case is remanded. Pp. 6-12.
92 F. 4th 304, reversed and remanded.
Justice Jackson delivered the opinion of the Court with respect to Parts I, II, and III, concluding that under §403(b) of the First Step Act, a sentence "has . . . been imposed" for purposes of that provision if, and only if, the sentence is extant--i.e., has not been vacated. Thus, the Act's more lenient penalties apply to defendants whose previous §924(c) sentences have been vacated and who need to be resentenced following the Act's enactment. Pp. 6-12.
(a) The text of §403(b) and the nature of vacatur support this conclusion. Congress employed the present-perfect tense, requiring evaluation of whether "a sentence . . . has . . . been imposed" upon the defendant, rather than the past-perfect tense that would exclude anyone upon whom a sentence "had" been imposed. The present-perfect tense can refer to "an act, state, or condition that is now completed" or "a past action that comes up to and touches the present" and thus conveys that the event in question continues to be true or valid. The Chicago Manual of Style §5.132, p. 268. When used in either sense, the present-perfect tense addresses whether something has continuing relevance to the present, not merely whether it occurred as a historical fact. If an event is merely a relic of history because it was voided by a subsequent action, the past-perfect (not the present-perfect) tense is usually the more appropriate verb choice. The fact that adjacent provisions of §403 contain past-tense verbs only strengthens the conclusion that §403(b)'s use of the present-perfect tense is meaningful. Pp. 6-10.
(b) Background principles regarding the legal effect of vacatur confirm that a sentence has been imposed for §403(b) purposes only so long as it remains valid. When interpreting statutes, the Court recognizes that Congress legislates against the backdrop of certain unexpressed presumptions. One such presumption is that vacated court orders are void ab initio and thus lack any prospective legal effect. A criminal defendant whose conviction has been vacated, for example, is to be treated going forward as though he were never convicted. By operation of legal fiction, the law acts as though the previous conviction never occurred. Section 403(b) reflects this commonsense understanding of background vacatur principles. Just as defendants with vacated prior felony convictions are not precluded from possessing weapons under the federal felon-in-possession ban, §403(b) retroactivity does not exclude from its scope those whose prior sentences were vacated. By authorizing retroactive application of the First Step Act's more lenient penalties on any eligible offender upon whom "a sentence . . . has not been imposed," the text of §403(b) indicates that only past sentences with continued validity preclude application of the Act's new penalties. Pp. 10-12.
Jackson, J., delivered the opinion of the Court with respect to Parts I, II, and III, in which Roberts, C. J., and Sotomayor, Kagan, and Gorsuch, JJ., joined, and an opinion with respect to Parts IV and V, in which Sotomayor and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas, Kavanaugh, and Barrett, JJ., joined.
Opinion of the Court
606 U. S. ____ (2025)
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
TONY R. HEWITT, PETITIONER 23-1002 v. UNITED STATES COREY DEYON DUFFEY, et al., PETITIONERS 23-1150 v. UNITED STATESon petitions for writs of certiorari to the united states court of appeals for the fifth circuit
Nos. 23-1002 and 23-1150. Decided June 26, 2025
Justice Jackson delivered the opinion of the Court, except as to Parts IV and V.1
Before the First Step Act was enacted in 2018, federal judges were required to sentence certain first-time offenders convicted of violating 18 U. S. C. §924(c)--a law that criminalizes the possession of a firearm while committing other crimes--to "stacked" 25-year periods of incarceration. The First Step Act, 132 Stat. 5194, eliminated this harsh mandatory minimum penalty. Congress also made the Act's more lenient penalties partially retroactive. Section 403(b) specifies that the Act applies if a sentence "has not been imposed" upon an eligible §924(c) offender as of the date of the First Step Act's enactment. Id., at 5222.
The question presented here concerns an edge case: What penalties apply when a §924(c) offender had been sentenced as of the Act's enactment, but that sentence was subsequently vacated, such that the offender must face a post-Act resentencing? We hold that, under that circumstance, a sentence "has not been imposed" for purposes of §403(b). Thus, the First Step Act's more lenient penalties apply.
I
Title 18 U. S. C. §924(c) criminalizes the use or possession of a firearm during and in relation to a crime of violence or drug-trafficking offense. The statute prescribes a 5-year mandatory minimum penalty for any first-time offense, which must run consecutively to any other term of imprisonment. §§924(c)(1)(A)(i), (c)(1)(D)(ii). Before the First Step Act, §924(c) also contained a recidivism enhancement that required imposition of an additional 25 years of imprisonment (on top of the 5-year mandatory minimum) for any "second or subsequent conviction under this subsection." §924(c)(1)(C)(i) (2006 ed.).
In Deal v. United States,
On December 21, 2018, a supermajority of Congress enacted the First Step Act, a landmark piece of legislation that changed the federal criminal-sentencing system in numerous respects. See 132 Stat. 5194. Among other things, §403(a) of the First Step Act "clarif[ied]" that district court judges are not required to impose stacked 25-year sentences when sentencing first-time §924(c) offenders. Id., at 5221-5222 (capitalization deleted). Abrogating this Court's decision in Deal, the statute established instead that, for first-time offenders, 5-year mandatory minimums apply to each count of conviction.
The First Step Act also addressed the potential for retroactive application of this penalty reduction, by specifically identifying the §924(c) offenders to whom the Act applied. Ordinarily, because judges impose sentences based on the statutory penalties that exist at the time defendants commit their offenses, 1 U. S. C. §109, statutory changes to federal penalties only benefit future offenders. But Congress altered this default no-retroactivity rule in the Act itself. Section 403(b)--titled "Applicability to Pending Cases"--made §403(a)'s reduced penalties applicable to certain existing §924(c) offenders, 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." §403(b), 132 Stat. 5222.
II
In 2009, petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross were convicted of multiple counts of bank robbery and conspiracy to commit bank robbery, along with corresponding §924(c) offenses for use of a firearm during a crime of violence. Each petitioner received a mandatory 5-year sentence as to their first §924(c) count of conviction. And, despite being first-time offenders, each received 25-year mandatory sentences on every §924(c) count beyond their first. Thus, in total, each petitioner's sentence exceeded 325 years. Roughly 25 of those years were due to the robbery offenses themselves, while the rest were attributable to stacked §924(c) counts.
Petitioners successfully challenged some of their convictions on direct appeal, and the Fifth Circuit accordingly vacated petitioners' sentences.3 In 2012, the District Court resentenced each petitioner to between 285 and 305 years on the counts that remained--sentences that the Fifth Circuit affirmed on direct review. Petitioners also filed postconviction motions under 28 U. S. C. §2255, which were each denied.
After Congress passed the First Step Act in 2018, this Court held that the "crime of violence" definition the Government routinely used to support some §924(c) convictions was unconstitutionally vague. See United States v. Davis,
When the District Court held resentencings for the remaining convictions, petitioners argued that the First Step Act's 5-year--not 25-year--mandatory minimum penalties applied. Petitioners argued that they were entitled to retroactive application of the First Step Act's more lenient penalties because a vacated prior sentence is not a sentence that "has . . . been imposed" for purposes of §403(b).4 The District Court disagreed and resentenced petitioners under the pre-Act sentencing scheme, giving them stacked 25-year mandatory minimum sentences for each §924(c) count of conviction beyond their first. Petitioners thus each received sentences of 130 years or more--105 years of which were attributable to stacked §924(c) penalties.
On appeal, petitioners and the Government agreed that the First Step Act should have applied at petitioners' resentencings. The parties thus jointly requested vacatur of petitioners' sentences, which the Fifth Circuit denied. 92 F. 4th 304, 310 (2024) (case below). In that court's view, §403(b) applies only "to defendants for whom 'a sentence . . . ha[d] not been imposed' as of the enactment date." Ibid. (alteration in original). Because each petitioner had been sentenced (twice) prior to the Act's enactment, the panel concluded that petitioners were not eligible for the First Step Act's more lenient mandatory minimums.
We granted certiorari to decide whether §403(b) of the First Step Act confers the benefit of the Act's more lenient penalties to defendants facing post-Act resentencing following vacatur of their pre-Act sentence. 603 U. S. ___ (2024).5 Because the United States agrees with petitioners on the merits of their appeals, the Court appointed Michael H. McGinley as amicus curiae to defend the judgment below. 603 U. S. ___ (2024). He has ably discharged his responsibilities.
III
The Fifth Circuit held, and amicus and the dissent contend, that §403(b) excludes any defendant who was sentenced prior to the enactment date of the First Step Act--even if his sentence was later vacated. That is so, in their view, because the Act applies only "if a sentence for the offense has not been imposed as of " the Act's enactment date, and a sentence "has . . . been imposed" upon that defendant as a matter of historical fact. 132 Stat. 5222 (emphasis added). But based on the text of §403(b) and the nature of vacatur, we conclude that a sentence has been imposed for purposes of that provision if, and only if, the sentence is extant--i.e., has not been vacated.
A
To understand why this is so, focus first on the language Congress used. Most notably, the operative phrase is not written in the past-perfect tense, excluding anyone upon whom a sentence "had" been imposed. Rather, Congress employed the present-perfect tense--thereby requiring evaluation of whether "a sentence . . . has . . . been imposed" upon the defendant. §403(b), 132 Stat. 5222 (emphasis added). In this context, that distinction makes a difference. See United States v. Wilson,
The present-perfect tense can refer to either (1) "an act, state, or condition that is now completed" or (2) "a past action that comes up to and touches the present." The Chicago Manual of Style §5.132, p. 268 (17th ed. 2017) (emphasis added). But when used in either sense, the tense simultaneously "involves reference to both past and present." R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 143 (2002). That is, while "the primary focus is on the present," the past maintains " 'current relevance.' " Ibid. (confirming that the present-perfect tense addresses "a time-span beginning in the past and extending up to now").6 Thus, one might employ the present-perfect tense to describe situations "involv[ing] a specific change of state" that produces a "continuing result." Id., at 145 (boldface deleted).
Here is an example. Suppose the U. S. Olympic Committee enacted a rule stating that athletes may call themselves Olympic champions if a gold medal "has been awarded" to them. Pursuant to that rule, a U. S. sprinter who took first place in the 2016 Summer Olympics' 100-meter finals could validly proclaim--today--that she is "an Olympic champion." The existence of her win as a historical event triggers the rule's proper application, because it gives rise to the inference that the athlete remains an Olympic gold medalist at present, thereby justifying her continued use of the "Olympic champion" title. See ibid. (explaining that the relevant "connection with the present" here would be "that the resultant state still obtains now").
But now imagine that the Olympic Committee stripped this sprinter of her medal after discovering that she used performance-enhancing drugs during the competition. Can that athlete, under the rule, still call herself an Olympic champion? The answer is no. Yes, she had been awarded such a medal, but it was revoked; the fact that she stood on the podium and was declared the winner in 2016 is inapposite for purposes of establishing whether she qualifies for Olympic-champion bragging rights under the rule today.7
When used in this way, the present-perfect tense conveys to a listener that the event in question continues to be true or valid. The dissent counters that, for purposes of the First Step Act, the relevant moment of analysis should not be the present, but rather the statute's date of enactment. See post, at 4-5. But that reframing is inconsistent with normal understandings of the present-perfect tense, which by definition focuses on the present.8 Today, if an event is merely a relic of history because it was voided by a subsequent action, the past-perfect (not the present-perfect) tense would usually be the more appropriate verb choice. See B. Garner, Modern English Usage 1082 (5th ed. 2022) (explaining that the past-perfect tense "represents an action as completed at some definite time in the past--that is, before some other past time referred to"); Chicago Manual of Style §5.133, at 268 (confirming that the past perfect "refers to an act, state, or condition that was completed before another specified or implicit past time or past action"). Our disqualified sprinter could thus still boast of her Olympic-champion status if the rule were, instead, that any athlete who "had been awarded" a gold medal was entitled to use that honorific.
The fact that adjacent provisions of §403 contain past-tense verbs only strengthens the conclusion that §403(b)'s use of the present-perfect tense is meaningful. Cf. Barrett v. United States,
Indeed, amicus and the dissent's historical-fact reading of §403(b) calls so naturally for the past-perfect tense that jurists who share this view often employ that tense by default. The Fifth Circuit below, for instance, stated that "the First Step Act applies to defendants for whom 'a sentence . . . ha[d] not been imposed' as of the enactment date." 92 F. 4th, at 310 (alteration in original). Other courts have construed §403(b) similarly. See, e.g., United States v. Jackson, 995 F. 3d 522, 525 (CA6 2021) (noting that "as of December 21, 2018, a sentence had been imposed" upon the defendant, even though it was later vacated). Congress of course "could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
B
Background principles regarding the legal effect of vacatur confirm that a sentence has been imposed for §403(b) purposes only so long as it remains valid. When interpreting statutes, we "recogniz[e] that 'Congress legislates against the backdrop,' of certain unexpressed presumptions." Bond v. United States,
A criminal defendant whose judgment of conviction has been vacated, for example, is to be treated going forward as though he were never convicted. See Fiswick v. United States,
Section 403(b) reflects this "common-sense" understanding of background vacatur principles. Lewis v. United States,
By authorizing retroactive application of the First Step Act's more lenient penalties on any eligible offender upon whom "a sentence . . . has not been imposed," the text of §403(b) indicates that only past sentences with continued validity preclude application of the Act's new penalties. A judge would thus correctly conclude at resentencing that, if an offender's past sentence has been vacated, a sentence "has not been imposed" upon that offender for purposes of the First Step Act; hence, the court can impose a new sentence today.
IV
A
The context and enactment history of the First Step Act and §403(b) further demonstrate that Congress's choice of the present-perfect tense was not accidental. Rather, Congress was reacting to sustained criticism of the prior sentencing scheme, and with §403(b), it intended to execute a clean break from the controversial and heavily contested "stacking" practice.
Sentencing judges had been among the harshest critics. Before the First Step Act was enacted, more than one veteran District Court Judge decried how the "stacking" punishment for first-time §924(c) offenders was "grossly disproportionate" and "shockingly harsh given the nature" of the offenses and a defendant's "lack of criminal history." United States v. Washington, 301 F. Supp. 2d 1306, 1309 (MD Ala. 2004) (lamenting the requirement of a 40-year term of imprisonment for a 22-year-old first-time offender, and remarking that it was "the worst and most unconscionable sentence [the judge] ha[d] given in his 23 years on the federal bench").10 Judges on the Federal Courts of Appeals also "join[ed] in the litany of criticisms directed towards" §924(c)'s penalty regime for requiring the imposition of sentences that were " 'out of this world.' " United States v. Hunter, 770 F. 3d 740, 746-747 (CA8 2014) (Bright, J., concurring); see also United States v. Hungerford, 465 F. 3d 1113, 1118-1119 (CA9 2006) (Reinhardt, J., concurring in judgment) (deeming "irrational, inhumane, and absurd" the mandatory 159-year sentence imposed upon "a 52 year-old mentally disturbed woman with no prior criminal record" who had otherwise "led a spotless, law-abiding existence"); United States v. Smith, 756 F. 3d 1179, 1181 (CA10 2014) (Gorsuch, J.) (observing that it was "no fanciful possibility" that §924(c) stacking would lead to "prison term[s] of many decades" that were "certain to outlast the defendant's life and the lives of every person now walking the planet").
Meanwhile, other institutional stakeholders raised similarly pointed objections to Deal's stacking system. In its annual report to Congress, the United States Sentencing Commission criticized how §924(c) stacking had "result[ed] in excessively severe and unjust sentences," particularly in cases in which "the offense did not involve any physical harm or threat of physical harm to a person." U. S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 359 (Oct. 2011). The United States Judicial Conference expressed similar concerns.11
The problem, as all seemed to recognize, was not that federal law permitted judges to impose lengthy sentences with respect to first-time §924(c) offenders--it was that the statute, as Deal had interpreted it, required it. District judges could not adhere to the statutory command that they give sentences that are "sufficient, but not greater than necessary, to comply with the purposes" of punishment, 18 U. S. C. §3553(a), if they were also required to sentence first-time offenders to §924(c)'s unduly harsh mandatory minimum penalties. Additionally problematic was the fact that, while federal law requires sentencing judges to "avoid unwarranted sentence disparities among defendants," §3553(a)(6), the variation among prosecutors' charging practices meant that §924(c) stacking was a reality for only some first-time offenders.12
With sentencing judges routinely imposing what amounted to mandatory life sentences on first-time §924(c) offenders, in 2018, Congress eventually heeded the public outcry. An "extraordinary political coalition" formed, as members of Congress worked together to develop "a bipartisan sentencing and prison reform bill" to address §924(c) stacking. 164 Cong. Rec. S7645 (Dec. 17, 2018) (statement of Sen. Durbin); see also Brief for Sen. Richard J. Durbin et al. as Amici Curiae 5-8 (Senators Brief ). The First Step Act was the much-anticipated, much-heralded fruit of their labor--and one that many in Congress hoped would yield immediate benefits. See id., at 17.13
B
It is noteworthy for present purposes that the statute Congress crafted to depart from the much-maligned "stacking" sentencing regime did so in a two-part fashion. First, §403(a) eliminated 25-year stacked sentences for first-time §924(c) offenders. Second, §403(b) addressed the retroactivity of the §403(a) benefit in a " 'targeted way,' " so as to ensure that judges were no longer constrained to impose 25-year stacked sentences on first-time §924(c) offenders moving forward. Id., at 15 (quoting 164 Cong. Rec., at S7645 (statement of Sen. Durbin)).
That second part of Congress's response--the focus of the cases before us today--was highly consequential. By displacing the background rule that changes to sentencing statutes apply only prospectively (to defendants who commit their offenses after the law's effective date), Congress made clear that the First Step Act's more lenient penalties were to apply to some " 'pending' " cases, too--i.e., the new penalties would be applicable to certain defendants who had committed their offenses before the First Step Act. Senators Brief 15 (quoting §403(b), 132 Stat. 5222). Per §403(b), any defendant who still needed to be sentenced as of the First Step Act's effective date would receive the Act's more lenient penalties. Thus, as a practical matter, judges would no longer have to impose harsh "stacked" sentences upon first-time §924(c) offenders.
Notably, because §403(b) retroactivity was only partial, it differed substantially from the full retroactivity Congress employed with respect to other kinds of penalty changes it instituted in the First Step Act. See, e.g., §404(b), 132 Stat. 5222; Terry v. United States,
In short, §403(b)--a middle-ground solution to the problem of harsh "stacked" sentences for first-time §924(c) offenders--reflected a balance of Congress's policy objectives. By leaving intact §924(c) sentences that judges had already imposed, Congress reinforced its interest in finality and avoided burdening district courts with additional litigation. But it also substantially advanced its goal of returning a significant amount of sentencing discretion to district court judges moving forward, by giving retroactive effect to the Act's more lenient penalties for those first-time §924(c) offenders who had yet to be sentenced.
V
The reading of §403(b) that petitioners and the Government promote thus coheres with the text, context, and history of that provision. Under this view, First Step Act sentencing benefits apply to all first-time §924(c) offenders sentenced after the Act's enactment date (whether it is an initial sentencing or a resentencing). This means that §403(b)'s retroactivity line falls between those past §924(c) offenders with final sentences that are still in effect, on the one hand, and those who still need to be sentenced for their §924(c) offense, on the other. The former are stuck with their old sentences, for finality reasons, while the latter are eligible for First Step Act benefits at resentencing, since they have to be sentenced regardless.
Under amicus and the dissent's reading, however, there exists a further line of division within the group of offenders who currently lack a sentence--separating those who have been sentenced previously for the §924(c) offense at issue from those who have not. For individuals in the former camp, per amicus and the dissent, a judge must return to the superseded sentencing scheme and impose stacked 25-year sentences when such defendants are resentenced.
Carving up the yet-to-be-sentenced group of offenders in this way does not reflect Congress's intent. See Senators Brief 17 (a bipartisan group of Senators, explaining that "[t]he considerations animating the First Step Act's enactment undermine any suggestion that Congress intentionally excluded from Section 403's reach pre-Act offenders whose sentences are invalid as a matter of law"). Nor does it comport with the statutory scheme that Congress enacted, for two primary reasons.
First, the text and context of §403(b) do not support differentiating between §924(c) offenders on the mere basis of the historical fact of a past sentencing (as we explained in Part III, supra), and, frankly, it is not clear what distinguishing between previously sentenced and never-before-sentenced offenders would accomplish. The prior imposition of a sentence does not bear on finality; if the offender currently lacks a sentence, then a court will have to resentence the defendant in any event. And though it would make sense to draw the line as amicus and the dissent do if the prior imposition of a sentence helped judges to more accurately identify serious first-time §924(c) offenders--potentially justifying the harsh and outdated stacked penalties that the First Step Act supplanted--nothing in the legislative record suggests this is so. Stated simply: The distinction between previously sentenced defendants and those who have never been sentenced before seems to make no difference in terms of the retroactivity aims of the statute.
By contrast, requiring judges to impose Deal-era stacked §924(c) sentences at resentencings runs headlong into the animating aims of the First Step Act. See Miller v. French,
Second, the reading of §403(b) that we adopt today is plainly more administrable than the one amicus and the dissent offer. Amicus argues that his interpretation is easy to apply, because a district judge only needs to know whether a prior sentence had ever been imposed upon the defendant for the relevant offense. But that knowledge is not enough--the sentencing judge would still need to reference, recall, and apply the superseded "stacking" regime, if applicable. And there is a much more straightforward way to administer §403(b): From the Act's enactment date onward, sentencing judges impose the First Step Act's lessened mandatory minimums for any first-time §924(c) offender--full stop. This reading of §403(b) requires no additional effort on the part of the judge to track down a defendant's sentencing history or to confirm what mandatory minimums previously governed. And it allows district judges to treat all first-time §924(c) defendants who appear before them for sentencing in an equitable manner that minimizes sentencing disparities, consistent with Congress's sentencing directives.
* * *
Under the interpretation of §403(b) we adopt today, all first-time §924(c) offenders who appear for sentencing after the First Step Act's enactment date--including those whose previous §924(c) sentences have been vacated and who thus need to be resentenced--are subject to the Act's revised penalties. The Fifth Circuit's contrary reading of §403(b) is reversed, and its judgment in these cases is remanded for further proceedings.
It is so ordered.
Alito, J., dissenting
606 U. S. ____ (2025)
TONY R. HEWITT, PETITIONER 23-1002 v. UNITED STATES COREY DEYON DUFFEY, et al., PETITIONERS 23-1150 v. UNITED STATESon petitions for writs of certiorari to the united states court of appeals for the fifth circuit
Nos. 23-1002 and 23-1150. Decided June 26, 2025
Justice Alito, with whom Justice Thomas, Justice Kavanaugh, and Justice Barrett join, dissenting.
In the First Step Act of 2018, Congress reduced the mandatory-minimum sentence for certain firearm offenses. Like all changes to sentencing law, this amendment applies prospectively. But Congress also thought it wise to apply the amendment to "Pending Cases." Of course, "Pending Cases" does not mean "All Cases," and Congress limited the retroactive reach of the amendment to defendants for whom "a sentence for the offense has not been imposed as of [the Act's] date of enactment." 132 Stat. 5222. In other words, the amendment applies retroactively only if the defendant had yet to be sentenced when Congress passed the Act in 2018. Petitioners, who were sentenced in 2010, do not come close to meeting that test.
Today, the Court disfigures the Act in order to reach a different result. Its interpretation relies on two necessary premises. First, the Court insists that what Congress really meant to say is that the amendment applies retroactively unless "a legally valid sentence" is in force on the Act's date of enactment. Second, to get around the fact that petitioners did have "legally valid" sentences when the Act was passed, the Court invents a novel "vacatur" principle. The Court tells us that the 2022 vacatur of petitioners' sentences rendered those sentences legal nullities from their inception. The Court's interpretation thus unspools the Act's carefully wound retroactivity command to mean that any defendant whose sentence is vacated at any time and for any reason may claim the benefit of the Act's reduced mandatory minimum. But nothing in the text or broader context supports such a boundless interpretation. Indeed, the portions of today's decision that command the votes of only three Justices give the game away. Animating the Court's atextual interpretation is a thinly veiled desire to march in the parade of sentencing reform. But our role is to interpret the statute before us, not overhaul criminal sentencing.
I
Sixteen years ago, a jury convicted petitioners Corey Duffey, Tony Hewitt, and Jarvis Ross of multiple 18 U. S. C. §924(c) offenses for use of a firearm in furtherance of a crime of violence. At the time, first-time §924(c) offenders like petitioners could receive, after a single trial, a 5-year mandatory-minimum sentence for an initial §924(c) conviction and a consecutive 25-year mandatory-minimum sentence for each "second or subsequent" §924(c) conviction. See §§924(c)(1)(A)(i), (c)(1)(C), (c)(1)(D)(ii) (2012 ed.); Deal v. United States,
Petitioners' sentences had thus long been final when Congress enacted the First Step Act on December 21, 2018. The Act introduced a bevy of sentencing reforms, including an amendment that eliminated the practice of §924(c) sentence stacking. See 132 Stat. 5221-5222. Although it had previously considered applying this amendment to all §924(c) offenders (including those with final sentences), see S. 2123, 114th Cong., 1st Sess., §104(b)(2) (2015) (reported by Committee), Congress settled on a far narrower retroactivity command:
"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." 132 Stat. 5222.
On the "date of enactment," petitioners' 2012 sentences remained in full force. As such, petitioners did not move to reduce their sentences in the immediate aftermath of the Act's passage.
But several strokes of good fortune soon came petitioners' way. The year after Congress passed the First Step Act, we held in United States v. Davis,
II
As all agree, petitioners' argument requires us to interpret what Congress meant when it said "a sentence for the offense has not been imposed as of [the Act's] date of enactment." What first jumps out about this provision is that Congress used the present-perfect tense in the phrase "has not been imposed." The present-perfect tense "denotes an act, state, or condition that" is either (1) "now completed" or (2) "continues up to the present." The Chicago Manual of Style §5.132, p. 268 (17th ed. 2017).
Context often indicates whether a speaker is using the former sense of the present-perfect tense (e.g., "he has been awarded a trophy") or the latter sense of the present-perfect tense (e.g., "he has trained for a trophy for the last three years"). See B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 97 (2016). Consider the following example. Suppose I ask a man passing by a courthouse, "Has a sentence been imposed on John Smith?" He could respond either, "Yes, on July 1" or "Yes, since July 1." The former response is perhaps the more natural one, and it assumes I asked for the historical fact of Smith's sentencing in the indefinite past. The latter response is correct (though perhaps awkward), and it assumes I asked about the continuing legal validity of Smith's sentence up to the present.
The First Step Act's "grammatical structure conceivably leaves some room for either reading," United States v. Uriarte, 975 F. 3d 596, 607 (CA7 2020) (en banc) (Barrett, J., dissenting), but petitioners lose either way. On one hand, the phrase "a sentence . . . has . . . been imposed as of [the Act's] date of enactment" could refer to the historical fact that a district court imposed a sentence before the Act's passage, regardless of whether that sentence remains legally valid in the future. This "historical-fact interpretation" plainly forecloses relief for petitioners because, as no one disputes, the District Court first imposed their sentences well before the Act's passage.1 On the other hand, "a sentence . . . has . . . been imposed as of [the Act's] date of enactment" could mean that a defendant was subject to a legally valid sentence that continued to be in force on the Act's enactment date. But again, petitioners did have legally valid sentences "as of [the Act's] date of enactment," so they lose under this "legal-validity interpretation" of the Act too.2
Realizing the Act's use of the present-perfect tense alone cannot help petitioners, the Court invents a novel "vacatur" principle to supercharge the legal-validity interpretation. The Court tells us that the First Step Act incorporates the background "presumption" that "vacated court orders are void ab initio and thus lack any prospective legal effect." Ante, at 10. This revamped version of the legal-validity interpretation means that "a sentence . . . has . . . been imposed as of [the Act's] date of enactment" if a defendant receives a legally valid sentence before the Act's passage and that sentence is never, at any future time, vacated. Under this view, the 2022 vacatur of petitioners' 2012 sentences implies that, "[b]y operation of [a] legal fiction," their 2012 sentences "never occurred" and so could not have been legally valid as of the Act's enactment date. Ibid.
The Court's vacatur-inflected legal-validity interpretation thus rests on two necessary premises. First, the legal-validity interpretation is superior to the historical-fact interpretation. Second, the Act incorporates the "vacatur" principle. If either premise falters, so does the Court's interpretation. In my view, there is little doubt that both of the necessary premises fail.
III
A
To start, the most plausible reading of the retroactivity provision is that "a sentence . . . has . . . been imposed" when, as a matter of historical fact, a district court has sentenced a defendant. Subsequent legal changes--such as the vacatur of a previously imposed sentence--do not change the purely historical fact that a defendant was, at a point in time, actually sentenced. When the Act asks whether a sentence "has . . . been imposed," it refers to the unchanging historical fact of sentencing and whether it occurred before the "date of enactment."
To see why, begin with the word "imposed." A "sentence is imposed" when there is a "pronouncement of judgment." Lott v. United States,
Our cases and other provisions of Title 18 confirm that the word "imposed" marks the historical point at which a sentence is pronounced regardless of whether that sentence has continuing legal validity. For example, in the midst of a discussion about plenary resentencing (a topic of particular relevance to these cases), we once noted that "[i]n remanded cases . . . trial courts have imposed a sentence on the remaining counts longer than the sentence originally imposed on those particular counts." Greenlaw v. United States,
Additional support for the historical-fact interpretation is found in Congress's use of the phrase "a sentence." The word "a" is an "indefinite article" that "points to a nonspecific object, thing, or person that is not distinguished from the other members of a class." B. Garner, Modern English Usage 1195 (5th ed. 2022) (Modern English Usage). "When used as an indefinite article, 'a' means '[s]ome undetermined or unspecified particular.' " McFadden v. United States,
Indeed, contrary to the Court's suggestion, the word "sentence" does not ineluctably mean a "legally valid" sentence. Our own cases prove the point because we have often found it necessary to clarify whether a sentence is valid or invalid. See, e.g., Swarthout v. Cooke,
Reading the retroactivity provision in context, the phrase "a sentence has not been imposed" most straightforwardly means that a district court has not, as a matter of historical fact, sentenced a defendant for his §924(c) offenses before the Act's "date of enactment." So how can the Court read the same text to refer to a presently valid sentence, rather than one that was historically "imposed" in the past? See ante, at 10. Bizarrely, the Court's analysis begins and ends with Congress's use of the present-perfect tense. Through the use of a single hypothetical, which does not resemble the structure of the provision actually before us, the Court draws the conclusion that "the present-perfect tense conveys to a listener that the event in question continues to be true or valid." Ante, at 8. But, as I have explained, the present-perfect tense is, as a general matter, capable of supporting either the historical-fact or legal-validity interpretation. The surrounding context and the specific words Congress employed indicate how the present-perfect tense may support one interpretation or the other. As to the actual words in the retroactivity provision ("imposed," "a sentence"), the Court's textual analysis in Part III-A is silent.3 The Court's failure to defend the legal-validity interpretation is thus an independently fatal blow to its holding.
B
Assuming the Court had proved up the legal-validity interpretation, it would still need to establish its "vacatur" principle. That is, it would still need to prove not only that the Act is concerned with a sentence's continuing legal validity up to the "date of enactment," but also that the Act hinges on the continuing validity of a sentence after the date of enactment. The Court can prove as much only by inventing a "legal fiction" that a vacated sentence "never occurred." Ante, at 10. But one need only scratch the surface of this purported "legal fiction" to understand how thoroughly unpersuasive it is.
As a preliminary matter, the Court's "vacatur" principle does not exist. The Court assures us that there is a well-established principle in the criminal law that "vacated court orders are void ab initio and thus lack any prospective legal effect." Ibid. It derives this rule by over-reading a few creative turns of phrase in our cases. See ante, at 11 (citing North Carolina v. Pearce,
1
Our precedents foreclose the Court's "vacatur" principle. Take, for example, one of the cases the Court cites, Lewis v. United States,
Although it supports the petitioners in this appeal, the United States also concedes (albeit sheepishly in a footnote) that the Court's "general background legal principle that vacatur makes a sentence void from the start for all purposes" is "incorrect." Brief for United States 27, n. 4 (internal quotation marks and alterations omitted). As it acknowledges, lower courts routinely follow Lewis and uphold convictions despite the later vacatur of predicate offenses. See, e.g., Burrell v. United States, 384 F. 3d 22, 27-28 (CA2 2004) ("[I]t is the mere fact of [a prior] conviction at the time of the charged possession, not the reliability of the conviction, that establishes the §922(g)(1) predicate" (internal quotation marks omitted)); United States v. Roberson, 752 F. 3d 517, 522 (CA1 2014) (upholding a conviction for failure to register as a sex offender even though the predicate sex offense was later vacated).
Moreover, as the United States also acknowledges, Lewis's logic crosses into the constitutional context. Consider Bravo-Fernandez v. United States,
The only " 'unexpressed presumptio[n]' " I can derive from our cases and those from the courts of appeals is the opposite of the one the Court advances today. Ante, at 10 (quoting Bond v. United States,
2
Congress too has rejected the Court's "vacatur" principle. In the Sentencing Reform Act, Congress "se[t] forth a special . . . background principle" that is incompatible with the "vacatur" rule invented today. Dorsey v. United States,
In short, the Court's failure to "sho[w] that its own rule . . . existed as a background matter when Congress enacted" the First Step Act is fatal to its position. Coinbase, Inc. v. Bielski,
3
Even assuming the "vacatur" principle is not a figment of the Court's imagination, it lacks any foothold in the Act's text. "When called on to resolve a dispute over a statute's meaning, this Court normally seeks to afford the law's terms their ordinary meaning at the time Congress adopted them." Niz-Chavez v. Garland,
The First Step Act fits neither mold, and the Court makes no effort in Part III-B to analyze how its "vacatur" principle maps on to the text. The Court points to no obvious gap in the Act's retroactivity provision that could be filled with "recognized" "background principles of construction." Bond,
C
The superiority of the historical-fact interpretation and the nonexistence of the Court's "vacatur" principle are independent reasons to reject the Court's holding. But even if the matter were close, two more factors counsel against the Court's rule.
First, the retroactivity provision's title--"Applicability to Pending Cases"--advises against the Court's boundless interpretation. "[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute." Dubin v. United States,
Second, the presumption against retroactivity further weighs against the Court's unnecessarily broad interpretation. The Federal Saving Statute sets forth "an important background principle of interpretation" that "a new criminal statute that 'repeal[s]' an older criminal statute shall not change the penalties 'incurred' under that older statute 'unless the repealing Act shall so expressly provide.' " Dorsey,
IV
After the Court is through with the text and nonexistent principles of vacatur, three Justices continue on for pages, sparing no effort, to extol the "much-anticipated, muchheralded" First Step Act. Ante, at 15. But what is the point of all this lauding? Perhaps realizing the weakness of their textual argument, the three Justices think it wise to spruce up the opinion. They attempt to do so by asserting that when a " 'bipartisan' " "supermajority" of Congress passes "landmark" legislation, it intends to go big, down to the very last subsection (or here, application note to a subsection). Ante, at 3; ante, at 15 (opinion of Jackson, J., joined by Sotomayor and Kagan, JJ.). So I gather they would have us broadly construe every atom of the "landmark" First Step Act in a way that furthers Congress's supposedly grand ambition to turn the page on "harsh" sentencing practices. Ante, at 16.
There is no "landmark" canon of construction requiring the Court to construe important legislation to its furthest possible implication. " '[N]o legislation pursues its purposes at all costs.' " American Express Co. v. Italian Colors Restaurant,
The three-Justice opinion rattles off the public criticisms that supposedly spurred Congress to reform the practice of §924(c) sentence "stacking." But this discussion is beside the point. Nothing in this multi-page discussion sheds light on how Members of Congress understood the retroactivity provision before us.
Carried away with its enthusiasm for the changes effected by the First Step Act, the three Justices bestow an entirely undeserved windfall on the actual petitioners in these cases. Due to the especially violent nature of their robberies,7 petitioners were convicted of more than a dozen §924(c) offenses, about half of which were not predicated on §924(c)'s residual clause.
In 2019 we decided Davis and provided a basis to set aside petitioners' §924(c) convictions under the residual clause, but Davis did nothing to disturb petitioners' other §924(c) convictions and associated mandatory-minimum sentences. In cases "involv[ing] multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction," a court, "in such instances, may vacate the entire sentence on all counts" and "reconfigure the sentencing plan" in toto. Greenlaw,
* * *
The Court ignores Congress's intention to afford only limited retroactive relief to certain offenders under the First Step Act. Instead, the Court embraces an interpretation that has no limiting principle and affords petitioners a windfall. That is an indefensible result based on indefensible reasoning. I cannot agree with the Court's decision, so I must respectfully dissent.
FOOTNOTES
Footnote 1
Footnote 2
Together with No. 23-1150, Duffey et al. v. United States, also on certiorari to the same court.
FOOTNOTES
Footnote 1
*The Chief Justice and Justice Gorsuch join all but Parts IV and V of this opinion.
Footnote 2
When this Court decided Deal in 1993, the enhanced mandatory minimum penalty under §924(c) was 20 years. See 18 U. S. C. §924(c) (1988 ed.). Congress increased the mandatory minimum to 25 years in 1998. See §924(c) (1994 ed., Supp. IV); 112 Stat. 3469.
Footnote 3
Petitioners were initially convicted of attempted bank robbery, too. Those convictions--along with the corresponding §924(c) counts--were vacated following petitioners' successful challenges on direct appeal. See United States v. Duffey, 456 Fed. Appx. 434, 444-445 (CA5 2012).
Footnote 4
During Duffey's and Ross's resentencings before the District Court, the Government maintained that petitioners were ineligible for First Step Act relief. But, by the time of Hewitt's resentencing, the Government had changed its position; it supported Hewitt's request for resentencing under the Act.
Footnote 5
The Courts of Appeals have divided over whether offenders who were sentenced pre-Act, but whose sentences were later vacated, are eligible to receive First Step Act benefits at their post-Act resentencing. Compare United States v. Merrell, 37 F. 4th 571, 577-578 (CA9 2022) (holding that, under §403(b), such an offender benefits from the Act at resentencing), and United States v. Mitchell, 38 F. 4th 382, 386-389 (CA3 2022) (same), with United States v. Jackson, 995 F. 3d 522, 525-526 (CA6 2021) (holding that such an offender does not benefit from the Act at resentencing, if the prior sentence was vacated after the Act's enactment); see also United States v. Uriarte, 975 F. 3d 596, 601-602, and n. 3 (CA7 2020) (en banc) (holding that such an offender benefits from the Act if his sentence was vacated prior to the Act's enactment date, but reserving judgment as to postenactment vacatur).
Footnote 6
A primary flaw of the dissent's textual argument is its failure to appreciate that, under either meaning of the present perfect, the event in question must relate to now. In other words, while the dissent accurately observes that the present-perfect tense can be used in one of two ways, see post, at 4 (opinion of Alito, J.), it ignores that neither refers to circumstances that are wholly in the past. What makes this the present-perfect tense is that, in each of its manifestations, there exists a connection to the present. See Huddleston, Cambridge Grammar of the English Language, at 143 (confirming that references "to times wholly before now"--when the present "is explicitly or implicitly excluded"--are largely "incompatible with the present perfect").
Footnote 7
The dissent does not dispute that a sprinter who is divested of her gold medal no longer qualifies as an "Olympic champion" under the hypothetical rule. Nor does the dissent contest that, if the Committee wanted such a disqualified sprinter to be able to still claim the title, it could phrase the rule in the past-perfect tense to accomplish that result (i.e., bestowing the honorific if a gold medal "had been awarded" to the athlete). The dissent's primary response to this hypothetical is, instead, to zero in on "[t]he obvious purpose of the hypothetical rule" and to explain that "the meaning of language is heavily dependent on context." Post, at 10, n. 3. Part IV of this opinion fully addresses the context of §403(b)'s language and Congress's primary objectives for enacting that provision--both of which support the Court's conclusion in this case.
Footnote 8
And, notably, there is a relevant connection to the present in the operation of §403(b) despite that statute's express reference to the date of the Act's enactment: the current occasion of the sentencing of the defendant in question. Sentencing courts read statutes at the moment of their application--which, here, would be the moment of resentencing, not the moment of enactment. From that proper vantage point, petitioners were not subject to a sentence, as any previous sentence had been vacated.
Footnote 9
The dissent erroneously suggests that, under our precedents, a vacated sentence continues to exist as a historical fact and thus retains prospective legal effect. See post, at 12-14. But the cases it cites do not support that contention. In Lewis v. United States,
Footnote 10
See also, e.g., United States v. Holloway, 68 F. Supp. 3d 310, 312 (EDNY 2014) (noting that §924(c) stacking "produce[d] sentences that would be laughable if only there weren't real people on the receiving end of them"); United States v. Angelos, 345 F. Supp. 2d 1227, 1244-1245, 1248 (Utah 2004) (assailing being required to give a 24-year-old who had possessed weapons while dealing small amounts of marijuana "more than doubl[e]" the sentence recommended for crimes resulting in "actual violence to victims," such as "hijack[ing]" an airplane, "detonat[ing] a bomb in a public place," or committing "rap[e]" or "second-degree murde[r]").
Footnote 11
See, e.g., Hearing before the Over-Criminalization Task Force of 2014 of the House Committee on the Judiciary, 113th Cong., 2d Sess., 41 (2014) (testimony of the Hon. Irene Keeley, U. S. District Judge, Judicial Conference of the U. S.) (explaining that §924(c) stacking produced "particularly egregious" sentences for first-time offenders that ran "contrary to the interests of justice" and "undermine[d] confidence" in its administration).
Footnote 12
The policies of U. S. Attorney's Offices diverged as to when--or whether--they would bring multiple §924(c) counts, a decision over which judges lack any control. See id., at 45 (testimony of the Hon. Patti Saris, Chair, U. S. Sentencing Commission). This produced disparate sentencing outcomes for similarly situated offenders across judicial districts. See U. S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 361-362 (Oct. 2011) (attributing the "geographic concentration" associated with §924(c) sentencing "to inconsistencies in the charging of multiple violations of section 924(c)"); see also In re Hernandez, 857 F. 3d 1162, 1169 (CA11 2017) (Martin, J., concurring in result) (finding "troubling" that the defendant "might never have received this [stacked] sentence if he had been sentenced in another part of the country"). In one case in which prosecutors stacked additional §924(c) counts after the defendant refused a plea offer, the District Judge specifically lamented the "risk of massive sentencing disparity between identically-situated offenders within the federal system," because other U. S. Attorney's Offices might not have proceeded in that same fashion. United States v. Angelos, 345 F. Supp. 2d 1227, 1253-1254 (Utah 2004).
Footnote 13
The dissent agrees that our job is to "interpret what Congress meant" by the words in §403(b). Post, at 4. Here, Congress's desire to change the derided, draconian sentencing stacking scheme Deal had created could not be clearer. Thus, far from "march[ing] in the parade of sentencing reform," post, at 2, we are merely observing the events and circumstances that led Congress to take up the banner of sentencing reform itself.
FOOTNOTES
Footnote 1
The Court dismisses the historical-fact interpretation out of hand because, as it understands English grammar, the present-perfect tense requires "a connection to the present." Ante, at 7, n. 5. But before pronouncing new rules of grammar, the Court might first consider consulting the authorities it cites. See, e.g., R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 144 (2002) (noting the "present perfect allows for the inclusion, under restrictive conditions, of a past time adjunct"). As these authorities suggest, the present-perfect tense allows one to say, for example, "[h]e has got up at five o'clock," ibid. (emphasis deleted), or "he has played golf before yesterday."
Footnote 2
The Act's requirement that a sentence "has . . . been imposed as of [the Act's] date of enactment" provides an essential temporal benchmark for both the historical-fact and the legal-validity interpretation. Remarkably, however, the Court reads this requirement out of the Act entirely. The Court insists that sentencing courts should "read" the First Step Act at "the moment of resentencing," without any reference to the Act's enactment date. Ante, at 8, n. 7. But the Court is mistaken. It starts on the right foot, acknowledging the "widely accepted modern legislative drafting convention that a law should not be read to speak as of the date of enactment." Carr v. United States,
Footnote 3
The Court's legal-validity interpretation also rests on the mistaken premise that the past-perfect tense best captures the historical-fact interpretation. The Court claims "if an event is merely a relic of history because it was voided by a subsequent action, the past-perfect (not the present-perfect) tense would usually be the more appropriate verb choice." Ante, at 8. I hope readers do not look to this Court as an authority on English grammar because this broad pronouncement is badly mistaken. As support for its grammatical rule, the Court offers a hypothetical: suppose a U. S. Olympic Committee rule says that "athletes may call themselves Olympic champions if a gold medal 'has been awarded' to them." Ante, at 7. If the Olympic gold medalist is stripped of her medal, however, the Court claims she can no longer call herself an "Olympic champion" under the rule. To enable our athlete to still call herself an Olympic champion based on her now-stripped medal, the Court tells us "the past-perfect" tense would be "more appropriate" (e.g., "she had been awarded such a medal"). Ante, at 8-9. That is highly debatable.
The only lesson taught by the Court's example is that the meaning of language is heavily dependent on context. The obvious purpose of the hypothetical rule is to restrict the class of individuals who are entitled to the honor of calling themselves Olympic champions, and the Court presumes that the athlete in question lost her medal because she engaged in improper conduct, e.g., taking performance-enhancing drugs. But suppose the medal was taken away for an illegitimate reason. Some historians think that Jim Thorpe, a legendary Native American athlete who dominated the 1912 Olympics, was stripped of his medals at least in part because of racism. See B. Crawford, All American: The Rise and Fall of Jim Thorpe 209-210 (2005); J. Elfers, The Tour To End All Tours: the Story of Major League Baseball's 1913-1914 World Tour 18 (2003). That was not completely undone until 2022, long after Thorpe died. See V. Mather & T. Panja, Jim Thorpe Is Restored as Sole Winner of 1912 Olympic Gold Medals, N. Y. Times, July 15, 2022. Suppose Thorpe had been asked: "Have you ever been awarded an Olympic medal?" Would he have been a liar if he answered "yes"? The Court seems to think so.
Indeed, the Court offers no answer to the argument that the present-perfect tense may be properly used to refer to a past event that was later undone. Instead, the Court promises readers that an answer will come in Part IV of its opinion--i.e., the portions in which only three Justices join. See ante, at 8, n. 6. But this promise goes unfulfilled. Part IV contains no deus ex machina to salvage the Court's interpretation; rather, Part IV throws a celebration for the First Step Act, perhaps hoping readers lose sight of the text behind all the confetti.
Footnote 4
In responding to Lewis, the Court accidentally fires on its own position. The Court justifies Lewis's holding by explaining that "the defendant's prior felony conviction had 'never been overturned'--i.e., vacated--at the time he possessed the weapon." Ante, at 11, n. 8 (quoting Lewis v. United States,
Footnote 5
In Dorsey,
Footnote 6
The portion of the opinion in which only three Justices join expresses concern that, under the historical-fact interpretation, district judges will struggle "to reference, recall, and apply the superseded 'stacking' regime." Ante, at 19. But I have far more faith in district judges' ability to enforce older sentencing regimes. Indeed, district judges' familiarity with 18 U. S. C. §3742(g), which routinely requires them to apply obsolete Sentencing Guidelines in the present, is proof positive.
Footnote 7
Dubbed the "Scarecrow Bandits" due to their plaid-shirt and floppy-hat disguises, petitioners and their confederates "violently robbed" a string of banks in the Dallas-Fort Worth area around 2008. 2009 WL 2356156, *1 (ND Tex. July 30, 2009); see FBI, Scarecrow Bandit Leader Sentenced to 355 Years in Federal Prison on Bank Robbery and Firearms Convictions (May 5, 2010). During the robberies, the Scarecrow Bandits held bank employees and customers at gunpoint and physically assaulted them with firearms and stun guns. See 2009 WL 2356156, *1. In total, the conspiracy stole more than $350,000 before authorities caught up with them. See Brief for United States 7.
Footnote 8
The chief reason for vacating perfectly valid convictions in such cases is to allow the sentencing court to consider whether the sentence previously imposed on a valid count provides sufficient punishment for the defendant's conduct. See Greenlaw,
Footnote 9
The District Court's willingness to vacate petitioners' entire sentences appears to have been informed by the position of the United States, which "agreed" with petitioners that the "sentences on all remaining counts should be vacated." Agreed Order in No. 3:08-cr-167 (ND Tex., Nov. 2, 2021), ECF Doc. 700, p. 2 (Ross); see Agreed Order in No. 3:08-cr-167 (June 14, 2021), ECF Doc. 672, p. 2 (Duffey); Agreed Order in No. 3:08-cr-167 (Aug. 19, 2021), ECF Doc. 683, p. 2 (Hewitt).
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HEWITT v. UNITED STATES, (2025)
No. 23-1002
Argued: January 13, 2025
Decided: June 26, 2025
Court: United States Supreme Court
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