Criminal First Step Act Retroactivity.

Byline: Mass. Lawyers Weekly Staff

Where a defendant sentenced to 872 months in prison moved for resentencing after the First Step Act took effect, the motion should be denied because Congress did not intend 403(a) of the First Step Act to compel the reopening of sentencing proceedings concluded prior to new law's effective date.

"In September 2018, we affirmed Carlos Cruz-Rivera's convictions for three counts of carjacking,see18 U.S.C. 2119, and three counts of using or carrying a firearm during a crime of violence,see18 U.S.C. 924(c), for which he was sentenced to 872 months in prison. At the time, 924(c)(1)(C)(i) required courts to impose a sentence of at least twenty-five years for each 'second or subsequent' 924(c) conviction, even if all the defendant's 924(c) convictions stemmed from the same indictment. ... So the district court had to stack a twenty-five-year term for each of Cruz's second and third 924(c) convictions atop the seven-year minimum for the first such count and Cruz's 188-month sentence for the car-jackings. After our mandate issued, however, Congress changed the law so that contemporaneous 924(c) convictions no longer trigger the twenty-five-year mandatory minimum, which now applies only to defendants who violate 924(c) after 'a prior conviction under [that] subsection has become final.' First Step Act of 2018, 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 52215222 (Dec. 21, 2018). Cruz, who had no 924(c) convictions when he committed the instant offenses, would not have qualified for the recidivist minimum under the new law if it had applied at his sentencing.

"Soon after the First Step Act took effect, Cruz filed a timely petition for certiorari in the United States Supreme Court, arguing that the change entitled him to resentencing. The Supreme Court denied it. ... Months later, however, the Court vacated the Sixth Circuit's judgment in a similar case which was pending on direct review when the First Step Act was enacted and remanded the matter to the court of appeals to 'consider' the new Act.Richardson v. United States, No. 18-7036, 139 S. Ct. 2713 (June 17, 2019). Encouraged, Cruz moved us to recall our mandate in his case and remand it for resentencing under the Act. Though we sympathize with Cruz's position, we have carefully considered his and the government's...