RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0215p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> No. 22-1198
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v. │
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TIMOTHY IVORY CARPENTER, │
Defendant-Appellant. │
┘
On Petition for Rehearing En Banc.
United States District Court for the Eastern District of Michigan at Detroit.
No. 2:12-cr-20218-4—Sean F. Cox, District Judge.
Decided and Filed: September 18, 2023
Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.
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COUNSEL
ON PETITION FOR REHEARING EN BANC: Harold Gurewitz, GUREWITZ & RABEN,
PLC, Detroit, Michigan, Jeffrey L. Fisher, O’MELVENY & MYERS LLP, Menlo Park,
California, for Appellant. ON RESPONSE: Andrew C. Noll, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Blake S. Hatlem, Andrew Picek, UNITED
STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
The court issued an order. KETHLEDGE, J. (pp. 3–6), delivered a separate opinion, in
which SUTTON, C.J., and THAPAR and BUSH, JJ., joined, concurring in the denial of the
petition for rehearing en banc. GRIFFIN, J. (pp. 7–11), delivered a separate opinion, in which
MOORE and STRANCH, JJ., joined, dissenting from the denial of the petition for rehearing en
banc. BLOOMEKATZ, J. (pp. 12–14), delivered a separate opinion, in which MOORE, CLAY,
GRIFFIN, STRANCH and MATHIS, JJ., joined, dissenting from the denial of the petition for
rehearing en banc.
No. 22-1198 United States v. Carpenter Page 2
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ORDER
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The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision. The petition then was circulated to the full court.*
Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied.
*Judge Davis recused herself from participation in this decision.
No. 22-1198 United States v. Carpenter Page 3
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CONCURRENCE
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KETHLEDGE, Circuit Judge, concurring in the denial of rehearing en banc. Our panel
applied binding circuit precedent in this appeal, but I write to explain why I think that precedent
(namely United States v. Jackson, 995 F.3d 522 (6th Cir. 2021)) was correct.
As an initial matter, we must apply something of a clear-statement rule here. The federal
savings statute—codified at 1 U.S.C. § 109—provides that “[t]he repeal of any statute shall not
have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such
statute, unless the repealing act shall so expressly provide[.]” The word “repeal[,]” as used in
§ 109, “applies when a new statute simply diminishes the penalties that [an] older statute set
forth.” Dorsey v. United States, 567 U.S. 260, 272 (2012). The First Step Act is plainly such a
“repeal.” Cf. id.; see also United States v. Hughes, 733 F.3d 642, 644 (6th Cir. 2013). Thus,
according to the Supreme Court, “we must assume that Congress did not intend” for such a
repeal to apply retroactively in a defendant’s case “unless [Congress] clearly indicated to the
contrary.” Id. at 264 (emphasis in original); see also Hughes, 733 F.3d at 644. So the question is
whether Congress has clearly indicated that the Act should apply here.
Section 403(b) of the First Step Act 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 interpretive question is whether that last, restrictive phrase requires the
absence of a particular historical fact—namely the imposition of a sentence—or the absence of a
sentence with ongoing legal effect.
We usually give the words of statutes their ordinary meaning; and on that score—for all
the opinions written on this issue—nobody has come close to dismantling then-Judge Barrett’s
grammatical exegesis as to why § 403(b) demands the absence of a particular historical fact.
See United States v. Uriate, 975 F.3d 596, 606-09 (7th Cir. 2020) (Barrett, J., dissenting).
Section 403(b) refers not merely to a “sentence” but to the imposition of one; and the statute’s
No. 22-1198 United States v. Carpenter Page 4
use of the verb “imposed[,]” plainly enough, puts the section’s “focus on the historical fact” of
the sentence’s imposition. Id. at 607. That comports with the section’s use of the present-perfect
tense, which signifies 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). Here, the sentence’s imposition
is “now completed.” And the act of imposing a sentence could not possibly “continue up to the
present”—because the imposition of a sentence occurs at a fixed point in time, when the district
court “state[s] in open court the reasons for its imposition of the particular sentence[.]” 18
U.S.C. § 3553(c).
Moreover—for purposes of precluding the Act’s retroactivity as to the sentence for a
particular conviction—the imposition of any sentence will do. For § 403(b) simply asks
whether, as of the Act’s date of enactment (December 21, 2018), “a” sentence has or “has not
been imposed[.]” First Step Act of 2018, Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5222.
That usage of “a”—which here the government calls the “neutral article,” but which everyone
else calls the “indefinite article,” see The Chicago Manual of Style ¶ 5.71—refers to “‘a
nonspecific object, thing, or person that is not distinguished from the other members of a class.’”
Uriate, 975 F.3d at 608 (Barrett, J., dissenting) (quoting Garner, Garner’s Modern Legal Usage
991 (4th ed. 2016)); see also United States v. Merrell, 37 F.4th 571, 578 (9th Cir. 2022) (Boggs,
J., dissenting) (same). Thus, “a sentence” as used in § 403(b) means any kind of sentence, not
just a valid or non-vacated one; and it does not mean “a valid sentence that survives
constitutional challenge on direct appellate review and is therefore not subject to a vacatur and
full remand for resentencing.” United States v. Mitchell, 38 F.4th 382, 386 (3d Cir. 2022).
Hence the ordinary meaning of § 403(b) is straightforward: it simply asks whether, as of
December 21, 2018, a sentence (meaning any sentence) has been imposed on the defendant.
Carpenter’s sentence had been imposed as of that date, and indeed had not even been vacated
yet. Thus—even under the reasoning of the Seventh Circuit opinion from which then-Judge
Barrett dissented—the First Step Act does not apply to Carpenter’s resentencing. See Uriate,
975 F.3d at 602 n.3.
The best argument to the contrary is that we should disregard the ordinary meaning of
§ 403(b) in favor of a technical meaning. Specifically, a sentence’s vacatur typically “wipe[s]
No. 22-1198 United States v. Carpenter Page 5
the slate clean” for purposes of resentencing, which means—the reasoning goes—that “‘a
sentence ha[s] not been imposed’ for purposes of § 403(b) at the time of resentencing.” Merrell,
37 F.4th at 575. Respectfully, however, that reasoning gives technical legal effect to a figure of
speech. Expressions like “wipe the slate clean,” or that after a sentence’s vacatur “the defendant
is placed in the same position as if he had never been sentenced,” id. at 576 (cleaned up), are
merely a shorthand for describing a district court’s discretion in sentencing a defendant on
remand: namely, that the court “generally should be free to consider any matters relevant to
sentencing, even those that may not have been raised at the first sentencing hearing[.]” Id.
(internal quotation marks omitted). Those expressions reflect that a vacated sentence is a
sentence without legal effect; but that does not mean the court may proceed as if the earlier
sentencing never happened. To the contrary, another statutory provision—entitled “Sentencing
upon remand”—provides in relevant part that “[a] district court to which a case is remanded . . .
shall apply the guidelines . . . that were in effect on the date of the previous sentencing of the
defendant prior to the appeal[.]” 18 U.S.C. § 3742(g) (emphasis added); see also Hughes, 733
F.3d at 645.
Section 3742(g) references the fact of a defendant’s earlier sentencing in the same way
that § 403(b) does—namely, as a temporal marker that identifies the substantive rules (guidelines
in the case of § 3742(g), mandatory minimums for § 403(b)) that the district court must apply
when sentencing a particular defendant. And using the historical fact of a defendant’s prior
sentencing as such a marker does not amount to giving the vacated sentence itself legal effect. A
sentence has legal effect when it restrains a defendant’s liberty, not when it marks a particular
point in time. See Merrell, 37 F.4th at 579 (Boggs, J., dissenting).
Nor is the word “sentence,” as used in § 403(b), a term of art that means only a sentence
that has not been vacated. That is just another way of saying that a vacated sentence is one that
the district court must pretend never happened. Moreover, the Supreme Court has said that
courts must not “assume that a statutory word is used as a term of art where that meaning does
not fit.” Johnson v. United States, 559 U.S. 133, 140 (2010). “Ultimately, context determines
meaning, and we do not force term-of-art definitions into contexts where they plainly do not fit
and produce nonsense.” Id. (cleaned up). The relevant “context” here is the one governed by
No. 22-1198 United States v. Carpenter Page 6
§ 3742(g), namely “[s]entencing upon remand.” And the historical fiction that Carpenter
advocates would produce nonsense and incoherence alike. Nonsense, because under Carpenter’s
interpretation—as in Merrell—a defendant who had been in prison for 20 years pursuant to a
later-vacated sentence “is somehow a defendant on whom a sentence has not been imposed as
of” the First Step Act’s effective date. Merrell, 37 F.4th at 578 (Boggs, J., dissenting).
(Meanwhile, a sentence cannot be vacated until it is first “imposed.”) And incoherence because,
under Carpenter’s interpretation, a district court must recognize the fact of the defendant’s prior
sentence for purposes of determining his guidelines range (as required by § 3742(g)), but at the
same time pretend that sentence never happened for purposes of determining the defendant’s
mandatory minimum. This kind of cognitive dissonance is hardly the “clear indication” of
retroactivity that the Court demanded in Dorsey.
Congress’s decision as to where to draw the line for a statute’s retroactive effect will
always yield results that seem arbitrary. Here, the line that Congress drew was simply between
defendants who had already been sentenced and those who had not. Our role is not to redraw
that line, even for a statute that is “remedial.” Thus, as in Hughes, “[n]either policy concerns,
nor some general sense of the statute’s overriding purpose, nor the spirit of the age, provides us
with any lawful basis to do what [the defendant] asks us to do here.” 733 F.3d at 647.
All that said, Carpenter’s sentence was extreme by any measure. His sentence was
largely dictated by mandatory minimums, which means the judiciary was largely denied any role
in determining it. Carpenter’s case therefore illustrates the importance of dividing government
power among three branches: for if the power to determine his sentence had not been
consolidated in only two—Congress and the executive—the sentence here would never have
been imposed.
No. 22-1198 United States v. Carpenter Page 7
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DISSENT
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GRIFFIN, Circuit Judge, dissenting.
This appeal arises under the First Step Act, which amended several criminal statutes and
reduced mandatory-minimum sentences for certain federal crimes. For defendant Timothy
Carpenter, the Act, if applied, “would reduce his mandatory-minimum sentence on his [18
U.S.C.] § 924(c) convictions by 80 years (from 105 years to 25).” United States v. Carpenter,
2023 WL 3200321, at *1 (6th Cir. May 2, 2023). But despite the Act’s retroactivity provision
extending its benefits to defendants awaiting sentencing, and despite the vacatur of Carpenter’s
earlier, invalid, pre-Act sentence, the panel here—following circuit precedent—concluded
Carpenter must now be resentenced under the old version of the statute with its outdated
sentencing scheme. Id. at *2 (citing United States v. Jackson, 995 F.3d 522, 524–25 (6th Cir.
2021)). In my view, Jackson was wrongly decided, and this case involves a question of
exceptional importance. Accordingly, I respectfully dissent from the denial of the petition for
rehearing en banc.
I.
The default rule for sentencing statutes is that offenders are subject to the version that
was in effect when the crime was committed. See Dorsey v. United States, 567 U.S. 260, 272–73
(2012). But the Act departed from that rule. Section 403(b) provides:
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.
First Step Act of 2018, Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5221–22.
This language raises the question of whether “a sentence” refers to a historical fact or one
with legal effect—i.e., does it encompass a prior, invalid sentence or does it require an existing,
valid one?
No. 22-1198 United States v. Carpenter Page 8
Under Jackson, whether the Act applies turns on a historical inquiry: was any sentence
(even an illegal or unconstitutional one) imposed on the defendant on or before December 21,
2018? 995 F.3d at 524–25. If so, the defendant is to be resentenced under the old version of the
statute, without the benefit of the Act’s sentencing reforms. As Judge Moore thoughtfully
explained, Jackson was wrongly decided—“[t]he plain language, structure, and purpose of First
Step Act § 403 suggest” that the Act applies at resentencing where an earlier sentence was
vacated. Id. at 526 (Moore, J., dissenting).
Beginning with the text, Jackson failed to account for the common-law meaning of “a
sentence” and the effect of vacatur on “a sentence.” When we interpret statutory language with
common-law terms, we presume that Congress employs their common-law meaning. United
States v. Hansen, 143 S. Ct. 1932, 1944 (2023) (“When Congress transplants a common-law
term, the ‘old soil’ comes with it.”); see also Universal Health Servs., Inc. v. United States, 579
U.S. 176, 187 (2016); NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981). At common law, “a
sentence” that was vacated was void “ab initio, as if it had never happened.” United States
v. Mitchell, 38 F.4th 382, 392–93 (3d Cir. 2022) (Bibas, J., concurring) (discussing historical
treatment, modern precedent, and an immigration exception demonstrating this meaning); see
also Pepper v. United States, 562 U.S. 476, 508 (2011) (Vacatur “wipe[s] the slate clean.”);
Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974) (“[A] void judgment is no judgment at all
and is without legal effect.”); Mitchell v. Joseph, 117 F.2d 253, 255 (7th Cir. 1941) (stating “the
general rule is that where a court, in the discharge of its judicial functions, vacates an order
previously entered, the legal status is the same as if the order had never existed” and collecting
cases).
True, “we do not assume that a statutory word is used as a term of art where that meaning
does not fit.” Johnson v. United States, 559 U.S. 133, 139 (2010). But here, the “void from the
start” meaning fits like a glove. If a pre-Act sentence is later vacated, then that sentence was
void from the start, including on the date the Act was enacted. That meaning, in turn, comports
with the Act’s purpose—to reduce the harsh length of mandatory-minimum sentences for certain
crimes for defendants awaiting sentencing for those crimes.
No. 22-1198 United States v. Carpenter Page 9
II.
Relying on then-Judge Barrett’s dissent in United States v. Uriarte, the concurrence
dismisses this common-law argument as a “technical” meaning that does not fit with the text’s
“ordinary meaning.” Conc. at 3–5 (citing Uriarte, 975 F.3d 596, 606–609 (7th Cir. 2020) (en
banc) (Barrett, J., dissenting)). But even the Uriarte dissent’s grammar discussion leaves one
unsure of how the statute’s “ordinary meaning” results in a “historical fact” approach. See id.
To state the “historical fact” conclusion in a way that makes grammatical sense, one must
use a verb tense different than the statute’s—replacing “has” with “had.” Conc. at 4
(“Carpenter’s sentence had been imposed as of that date, and indeed had not even been vacated
yet.”) (emphasis added); see Uriarte, 975 F.3d at 610 (“[T]he applicability of the First Step Act
turns on whether a sentence had been imposed on the defendant before the date of enactment.”)
(emphasis added).
But the statute uses the present-perfect tense (has), not the past-perfect one (had). The
present-perfect tense “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) (emphases added). As
particularly relevant here, our caselaw provides that one of the “multitude of definitions of
‘imposed’” is one describing the ongoing condition of a sentence. United States v. Henry,
983 F.3d 214, 223 (6th Cir. 2020) (“When our court reviews a sentence on direct appeal, that
sentence remains ‘imposed’ unless we vacate and remand for resentencing.”) (emphasis added).
With this understanding, Section 403(b) refers not to a district court’s past action, but rather to a
sentence’s ongoing condition.
First, Congress wrote the statute in the passive voice—“a sentence” is the thing that “has
been imposed.” There is no mention of the district court.
Second, if the text were referring to an act that occurred at a specific time in the past (like
when a district court “imposed” an invalid sentence at an earlier sentencing), then the correct
verb tense would have been the past tense or even the past-perfect tense. The present-perfect
tense “is distinguished from the past tense because it refers to (1) a time in the indefinite
past {I have played golf there before} or (2) a past action [or state or condition] that comes up to
No. 22-1198 United States v. Carpenter Page 10
and touches the present {I have played cards for the last eighteen hours}.” The Chicago Manual
of Style ¶ 5.132 (17th ed. 2017) (emphases omitted). “The past tense, by contrast, indicates a
more specific . . . time in the past.” Id. The Act’s use of the present-perfect tense indicates that
it is not asking about an act at a specific time in the past, rather, it is concerned with a condition
that “comes up to and touches the present.” Id.
If a “sentence remains ‘imposed’” until we vacate it, Henry, 983 F.3d at 223, then has
Carpenter’s sentence been imposed as of December 21, 2018? No. It was imposed as of that
date. It had been imposed as of that date. But it has not been imposed as of that date. In my
view, if there is an “ordinary meaning” to this language, it supports the Act’s application here.
III.
All our sister circuits that have considered the meaning of “a sentence” in the Act have
disagreed with Jackson—that term does not encompass a vacated sentence. United States
v. Mitchell, 38 F.4th 382, 386–89 (3d Cir. 2022); United States v. Merrell, 37 F.4th 571, 575–76
(9th Cir. 2022); United States v. Bethea, 841 F. App’x 544, 549–51 (4th Cir. 2021) (analyzing an
identical provision in § 401(c)); see also United States v. Uriarte, 975 F.3d 596, 601–06 (7th Cir.
2020) (en banc) (analyzing whether the Act applies to defendants whose sentences were vacated
before December 21, 2018, but noting that vacatur renders a sentence “a nullity” and “wipe[s]
the slate clean”) (citation omitted). And in a rare show of agreement on a petition for rehearing
en banc, the government agrees that Jackson was wrongly decided and supports Carpenter’s
petition.
Moreover, our interpretation of the statutory language at issue matters to more than just
cases involving firearms in connection with crimes of violence, like Carpenter’s. 18 U.S.C.
§ 924(c). The Act uses identical language in § 401(c), which applies the Act’s benefits to
offenders sentenced for certain drug offenses under 21 U.S.C. § 841. First Step Act of 2018,
Pub. L. No. 115-391, § 401, 132 Stat. 5194, 5221. How we interpret this language will continue
to matter for years to come, as defendants’ pre-Act sentences or convictions are considered (and
potentially vacated) on post-conviction review under 28 U.S.C. § 2255.
No. 22-1198 United States v. Carpenter Page 11
IV.
When “construing a statute, courts ought not deprive it of the obvious meaning intended
by Congress, nor abandon common sense.” Uriarte, 975 F.3d at 603 (citation omitted). We did
so in Jackson, and today, we miss an opportunity to correct our error. For these reasons, and
those set forth in Judge Moore’s dissent in Jackson, I respectfully dissent from the denial of
Carpenter’s unopposed petition for rehearing en banc.
No. 22-1198 United States v. Carpenter Page 12
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DISSENT
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BLOOMEKATZ, Circuit Judge, dissenting from the denial of rehearing en banc. My
colleagues have set forth thoughtful analyses on the merits of the interpretive question that this
case presents about the First Step Act’s retroactivity provision. I write separately to emphasize a
predicate point—that this case has all the hallmarks of one that warrants the full court’s
consideration. In United States v. Jackson, 995 F.3d 522 (6th Cir. 2021), we held that the Act’s
retroactivity provision did not cover a defendant who had been sentenced before the Act’s
effective date but whose sentence had been vacated after that date. Id. at 524–25. Jackson’s
holding not only clashes with our own prior precedent, but also departs from every other circuit
to have considered the issue. And it does so on a question of exceptional importance, where both
the federal government and the defendant seek en banc review. We should have agreed.
Federal Rule of Appellate Procedure 35 provides that rehearing en banc “is not favored
and ordinarily will not be ordered unless” either of two requirements are met: (1) “en banc
consideration is necessary to secure or maintain uniformity of the court’s decisions,” or (2) “the
proceeding involves a question of exceptional importance.” This case more than satisfies these
requirements.
First, consider the uniformity requirement. In my view, Jackson is irreconcilable with
this Court’s previous decision in United States v. Henry, 983 F.3d 214 (6th Cir. 2020). Henry
held that defendants whose sentences under 18 U.S.C. § 924(c) were vacated before the First
Step Act’s effective date should be sentenced under the Act’s amended § 924(c) at resentencing.
Yet Jackson read the Act’s retroactivity provision not to apply to anyone who had received “a
sentence” as a matter of “historical fact” before the Act’s effective date—even if the sentence
was void. Conc. at 3; Jackson, 995 F.3d at 524–25 (“[V]acatur does not erase Jackson’s prior
sentence from history.”). Jackson attempts to distinguish Henry by noting that Henry’s sentence
was vacated before the Act’s effective date and Jackson’s was vacated after. Id. at 525. If
following Jackson, however, the critical question is whether “a” sentence had ever been imposed
No. 22-1198 United States v. Carpenter Page 13
as a historical matter, then Henry is in direct conflict. Id. at 527 (Moore, J., dissenting) (noting
that the majority opinion “adopts a reading of the text that we rejected in Henry”).
Jackson also splits from all our sister circuits to have reached the question. See United
States v. Mitchell, 38 F.4th 382 (3d Cir. 2022); United States v. Merrell, 36 F.4th 571 (9th Cir.
2022); United States v. Bethea, 841 F. App’x 544 (4th Cir. 2021). This case, then, presents both
an intra- and inter-circuit conflict, weighing in favor of en banc review.
Second, consider the myriad ways this issue is exceptionally important. The concurring
and dissenting opinions have already identified several. Judge Kethledge opines that Carpenter’s
sentence, in absence of the First Step Act’s application, “was extreme by any measure.” Conc. at
6. And he earlier reflected that Jackson’s decision not to apply the Act could frustrate the basic
federal sentencing requirement that sentences be “‘sufficient, but not greater than necessary, to
comply with’ the purposes of sentencing.” United States v. Carpenter, No. 22-1198, 2023 WL
3200321, at *2 (6th Cir. May 2, 2023) (quoting 18 U.S.C. § 3553(a)). As Judge Griffin likewise
recognizes, Jackson’s interpretation “will continue to matter for years to come” and could also
affect one of the Act’s other retroactivity provisions, which uses identical language to govern the
retroactive effect of amendments to certain drug offenses. Dissent at 10.
The real human costs that this esoteric legal issue presents also should not be overlooked.
Because our circuit has split from every other to reach this issue, defendants in Kentucky,
Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in
most of the other states. Carpenter proves this 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. See Dissent at 7. The resulting sentencing disparity, along with the other reasons
I have outlined, should give us pause enough to consider the decision as a full court. Indeed, the
circuit split, the federal government’s position, the dissent from then-Judge Barrett in Uriate, and
the dueling opinions on this en banc petition underscore that the scope of the retroactivity
provision is far from clear. See United States v. Uriate, 975 F.3d 596, 606–09 (7th Cir. 2020)
(en banc) (Barrett, J., dissenting).
No. 22-1198 United States v. Carpenter Page 14
This case is a textbook example of the rare case that deserves the full court’s attention. I
respectfully dissent from the denial of the petition.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk