Yesterday, the Sixth Circuit issued a set of engrossing opinions accompanying its order denying the petition for rehearing en banc in United States v. Carpenter, No. 22-1198 (6th Cir. Sep. 18, 2023). The order is noteworthy for, among other reasons, solidifying a circuit split on the interpretation of the last, restrictive clause in section 403(b) of the First Step Act. Although the Court did not rehear the case en banc, a majority of active judges weighed in on the interpretive issue by joining one of the three opinions the order generated. Also notable was the fact that one of those opinions was the first ever authored by the Sixth Circuit’s newest member: Judge Bloomekatz.
Before diving into the opinions, let’s set the stage. The central issue in Carpenter has percolated in the federal courts of appeals for a while. The First Step Act reduced mandatory-minimum sentences for certain federal crimes subject to some caveats. One of those caveats is contained in Section 403(b) of the Act, which provides: “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.” (Emphasis added). The issue in Carpenter and similar cases turns on the meaning of that italicized phrase.
Like the defendants in other cases, Carpenter had previously been sentenced to a mandatory-minimum sentence for a firearms offense but the sentence was later vacated, and, before his resentencing, the First Step Act went into effect. The question thus arose: given the vacatur of Carpenter’s prior sentence, and notwithstanding the “historical fact” of that sentence, should Carpenter receive the benefit of the Act’s reduction of the otherwise applicable mandatory minimum? Following binding precedent from United States v. Jackson, 995 F.3d 522 (6th Cir. 2021), the Carpenter Panel answered, “no.” See United States v. Carpenter, 2023 WL 3200321, at *2 (6th Cir. 2023).
Yesterday’s order meant that Carpenter failed to persuade enough of the Court to revisit Jackson by rehearing Carpenter en banc. The order nonetheless generated three separate writings, and a majority of active judges signed onto at least one of the opinions. Below, I briefly summarize each opinion.
First up was Judge Kethledge’s opinion, joined by Chief Judge Sutton, Judge Thapar and Judge Bush. It bears noting that Judge Kethledge wrote the decision at the panel stage too, where he was joined by Judge Guy and Judge Stranch. (This Panel, by the way, was the same Panel that, a few years ago, ruled on the constitutionality of the government’s acquisition of Carpenter’s cell-site records during its investigation into his offense. That decision teed up the issue for SCOTUS, which later issued a decision in the case. See Carpenter v. United States, 138 S. Ct. 2206 (2018). Yes, recent law grads, that is the same Carpenter decision you read in your constitutional criminal procedure class.)
In his decision for the Panel in this appeal, Judge Kethledge largely just explained that Jackson was on all fours with the issue here and thus governed the Panel’s decision. Judge Kethledge did note his view, however, that Carpenter’s mandatory 105-year sentence made 18 U.S.C. 3553(a)’s separate requirement — that the court “impose a sentence sufficient, but not greater than necessary, to comply with” the purposes of sentencing — ”ring hollow.” Carpenter, 2023 WL 3200321, at *2.
Unlike his decision for the Panel, which simply applied Jackson, Judge Kethledge’s opinion concurring in the denial of rehearing en banc fully defended the Court’s decision in Jackson–a decision that one of the judges who joined Judge Kethledge’s concurral, Judge Bush, wrote. In so doing, Judge Kethledge relied heavily on an en-banc dissent written by then-Judge Barrett in United States v. Uriate, 975 F.3d 569, 606-09 (7th Cir. 2020), which, according to Judge Kethledge, “nobody has come close to dismantling.” Op. at 3 (Kethledge, J. concurring). Judge Kethledge reasoned that section 403(b) “refers not merely to a ‘sentence’ but to the imposition of one; and the statute’s use of the verb ‘imposed[,] plainly enough, puts the section’s ‘focus on the historical fact’ of the sentence’s imposition.” Id. at 3-4 (emphasis and alternation original) (quoting Uriate, 975 F.3d at 607). For Judge Kethledge, that reading was supported by section 403(b)’s use of the present-perfect tense, which he thought was intended to signify an “act, state, or condition that is now complete.” Id. at 4 (quotation omitted). Judge Kethledge found further support for his interpretation in section 403(b)’s use of the indefinite article “a” in describing “a” sentence that “has or ‘has not been imposed[.]” Id. (alteration original) (quotation omitted).
Judge Kethledge rejected the contrary view that a defendant has not been sentenced under section 403(b) if the defendant’s prior sentence has subsequently been vacated. To Judge Kethledge, that understanding of section 403 incorrectly applies “technical legal effect to a figure of speech” calling for ordinary meaning. See id. at 5.
Judge Kethledge also explained why a contrary interpretation “would produce nonsense and incoherence alike.” Id. at 6. It would be nonsensical, Judge Kethledge reasoned, if “a defendant who had been in prison for 20 years pursuant to a later-vacated sentence” was “somehow a defendant on whom a sentence has not been imposed as of” the First Step Act’s effective date.” Id. at 6 (quotation omitted). And it would be incoherent if a district court had to “recognize the fact of the defendant’s prior sentence for purposes of determining his guidelines range … but at the same time pretend that sentence never happened for purposes of determining the defendant’s mandatory minimum.” Id.
Although Judge Kethledge stood by the Jackson decision, he made clear once again his discomfort with the outcome dictated by applying that decision to this case. “Carpenter’s sentence was extreme by any measure,” stated Judge Kethledge. Id. And Judge Kethledge seemed to lay much of the blame for that result on the mandatory-minimum scheme Congress had devised. See id. That scheme meant “the judiciary was largely denied any role in determining” Carpenter’s sentence. Id. Carpenter’s case thus illustrated to Judge Kethledge the importance of the separation of powers. Had the power to determine Carpenter’s sentence not been consolidated in just the executive and legislative branches, “the sentence here would never have been imposed.” Id.
In his dissenting opinion, Judge Griffin explained why he thought the interpretive approach taken in Jackson and Judge Kethledge’s concurring opinion was incorrect. He was joined by Judge Moore (who dissented in Jackson) and Judge Stranch (who evidently has misgivings about Jackson but nonetheless felt bound by the decision at the panel stage).
Judge Griffin framed the issue as whether “a sentence” under section 403(b) “encompass[es] a prior, invalid sentence,” or, instead, requires “an existing, valid one?” Id. at 7 (emphasis original). Judge Griffin believes the latter is true. Judge Griffin supported his reading with the familiar canon positing that, when courts interpret statutory language using common-law terms, courts “presume that Congress employs their common-law meaning.” Id. at 8. Under the common law, Judge Griffin explained, a vacated sentence is “ab initio” – meaning, it’s “as if it had never happened.” Id. In Judge Griffin’s view, that common-law understanding of a vacated sentence “fits like a glove” within the statutory framework here, and so it should have applied. Id.
Judge Griffin relied on grammar, too. According to Judge Griffin, the “historical fact” approach only made grammatical sense if one replaced the word “has” in section 403(b) with “had.” Id. at 9. Judge Griffin further noted that every other circuit that has considered the meaning of “a sentence” in the statute has come out differently than Jackson and Carpenter. Indeed, as Judge Griffin pointed out, even the federal government agreed that “Jackson was wrongly decided and supports Carpenter’s petition.” (One has to wonder, though, whether that confession carried less weight with the concurring judges considering that the DOJ confessed error in Terry v. United States 141 S. Ct. 1858 (2021) — another First Step Act case — but the Supreme Court nonetheless affirmed the judgment there in a 9-0 decision.)
Judge Griffin wrapped up his opinion on a premonitory note: how the Court interprets the statute, he warned, would “continue to matter for years to come,” including for drug offenses sentenced under section 401(c) of the Act, which uses language identical to the language used in section 403(b).
In her first-ever-authored opinion, Judge Bloomekatz dissented, too, but she wrote to “emphasize a predicate point.” Op. at 12 (Bloomekatz, J., dissenting). In so doing, Judge Bloomekatz was joined by Judges Moore, Clay, Griffin, Stranch, and Mathis. According to Judge Bloomekatz, “this case ha[d] all the hallmarks of one that warrant[ed] the full court’s consideration.” Id. Among them was her view that Jackson’s holding clashes with the Sixth Circuit’s “own prior precedent” and “departs from every other circuit to have considered the issue.” Id. Judge Bloomekatz also explained why she thinks the issue in the case is exceptionally important, highlighting “[t]he real human costs that this esoteric legal issue presents.” Id. at 13. She reasoned that, after Jackson, “defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.” Id. at 13. Carpenter’s situation is a case in point. “His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits.” Id. (emphasis original). For those reasons (among others), Judge Bloomekatz thought this was “a textbook example of the rare case that deserves the full court’s attention.” Id. at 14.
Precisely because of the disparities that Judge Bloomekatz underscored in her opinion, the Supreme Court will almost certainly have the final word on this issue. That’s not to say the Supreme Court will agree with the dissenters. Indeed, we already know that at least one justice disagrees with them. But it seems very unlikely that the Supreme Court will tolerate a circuit split that produces such disparate outcomes across jurisdictions. Fundamental fairness demands that if Carpenter should be denied the benefit of the First Step Act’s mandatory-sentence repeals, the same should be true of defendants similarly situated to him. And conversely, if the law requires that others similarly situated to Carpenter receive the benefit of those repeals, the same should be true for Carpenter. Here’s to hoping the Supreme Court settles this debate sooner rather than later.