Andrew Paul Smith | Duffey v. United States

INTRODUCTION

This case involves the interpretation of a criminal statute, a conviction under that statute, and legislation that modifies that criminal statute. Additionally, this is a consolidated case of three confederates who applied individually for certiorari. At its core, it raises questions about how changes in law apply to sentences that have been vacated.

Relevant here is section 924(c). This statute targets individuals who “during and in relation to any crime of violence or drug trafficking crime . . . use[] or carr[y] a firearm[.]” Section 924(c)(1)(C) provides minimum sentences for repeat offenders, but its text and application have changed over time. Prior to 2018, the statute was read to cover those with a “second or subsequent conviction” under section 924(c). Courts understood this to apply not only to those who were previously convicted under section 924(c) but also to those industrious criminals who were convicted of two violations of section 924(c) at the same time. In 2018, Congress passed the First Step Act, a rather sweeping bill with several changes to the criminal justice system. Section 403 of the Act amended section 924(c)(1)(C) to only include a “prior conviction . . . [that] has become final” (emphasis added). Lastly, section 403(b) of the First Step Act noted that the updated statute would apply to ongoing cases “if a sentence for the offense has not been imposed as of such date of enactment [of the First Step Act].”

Here, three gentlemen by the names of Duffey, Hewitt, and Ross were involved in a bank-robbing racket by the name of “the Scarecrow Bandits.” This trio and their confederates knocked over several banks throughout the former half of 2008, until eventually they were apprehended, tried, and convicted. For their troubles, they each netted literally hundreds of years of prison time, due in part because of the mandatory sentencing imposed by section 924(c)(1)(C). The Supreme Court ruled part of section 924 unconstitutional in 2019, and the trio managed to vacate their sentences (though not their convictions).

The Northern District of Texas was thus confronted with a critical question: should section 403 of the Act have been read to include cases where a sentence was vacated? At the government’s urging, the district court said no. The 5th Circuit later affirmed, noting that a sentence had indeed been reached, even if it would later be vacated.

One particularly interesting party disagrees with the government: the government. At the District level, it originally did argue that section 403 did not apply to vacated section 924(c) sentences originally set before the passage of the First Step Act, but it changed its tune before the Northern District of Texas last sentenced the Duffey and his compatriots. Even now, the government as respondents only opposed granting cert because, in its view, the benefit of settling the matter is limited.

ISSUES PRESENTED

If an individual is convicted and sentenced to 18 USC § 924(c), i.e., they have been found guilty of using a firearm while committing a violent or drug-related crime, and that sentence is vacated, should courts apply the version of section 924(c) that applied before or after the passage of the First Step Act?

ARGUMENTS

As noted above, the government actually agrees with petitioners in this case. Thus, the question is not whose opinion is preferable amongst the named parties but whose argument is correct between the parties and the lower courts. In addition, there is a circuit split on the issue.

The Fifth Circuit’s affirmation of the district court turned primarily on the following conclusion: “[W]e read § 403(b) as drawing the line for [the new sentencing guidelines] at the date on which a sentence—whether later-vacated or with ongoing validity—was imposed.” Duffey v. U.S., 92 F.4th 304, 312 (5th Cir. 2024). In its analysis, its found that because section 403(b) only applies if “a sentence” has not been imposed at the “date of enactment” of the First Step Act, then if any sentence was present when the Act was made law, section 403(b) does not apply. Id. at 311. The Sixth Circuits has previously made similar holdings and has distinguished cases that were vacated before the passage of the First Step Act and those that were vacated after, stating those vacated before are within the purview of section 403(b). United States v. Jackson, 995 F.3d 522, 525 (6th Cir. 2021).

Briefs for defendants Duffey and Hewitt, as well as the United States, share many key arguments. Centrally, they question if a sentence that has been vacated can still be considered a sentence at all. If a sentence is vacated and a new one imposed, then presumably one is not modifying the original sentence but is replacing it with a brand new one, which aligns with the principle that a person cannot be sentenced twice for the same offense. The United States notes that 18 U.S.C. § 3582(c) actually bars modification of a sentence, so this interpretation is consistent with the code. The parties also note that, even if there is some ambiguity on whether the Act should apply, the ambiguity invites the rule of lenity to be applied.

The Third and Ninth Circuits have generally agreed with the parties and have applied the First Step Act to vacated pre-Act sentences. For example, in United States v. Merrell, the Ninth Circuit noted that vacated sentences “’wiped the slate clean’” (quoting Pepper v. United States, 562 U.S. 476, 507 (2011)) and accordingly that such a sentence could not be considered as “imparted” upon a defendant. 37 F.4th 571, 575 (9th Cir. 2022).

Notably, the Fourth and Seventh Circuits have ruled on similar issues in ways sympathetic to defendants and are cited in the opinions referenced above, although they do not directly speak to the specific issues discussed here.

LOOKING FORWARD

This case is not the first to concern divining sentencing guidelines, nor the first to concern the First Step Act. In Terry v. U.S., the application of amended sentencing for drug-related crimes, as amended by the First Step Act, came under scrutiny by the Supreme Court; in that specific instance, the defendant did not reap the benefits of the First Step Act. 593 U.S. 486 (2021). One year later, the Court decided Concepcion v. United States, the Supreme Court declared judges could consider changes in law that might not even directly relate to sentencing for the specific crime in question, per section 404(b) of the Act. 597 U.S. 481 (2022). The Court has cut both ways on interpreting the First Step Act, and it seems likely the case will be resolved strictly through a textual interpretation.

While the First Step Act has been well litigated, this case emerges not only out of that Act but also out of an important open question. Vacating a sentence may indeed “wipe the slate clean,” but does that mean the sentence should be treated as nonexistent? It is one thing to conclude what a vacated sentence does and another to figure out what a vacated sentence is. This case will likely lay some groundwork for future criminal justice reforms accordingly.

Whenever the Supreme Court rules to limit or overturn criminal law, sentences will surely be vacated. If those sentences are predicated on a statute impacted by the First Step Act, how they are interpreted will be decided by this case—the results of this case may have great impact for many defendants down the line.