United States v. Kenneth Jackson, Jr.

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0536n.06

Case No. 22-3958

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 21, 2023
) KELLY L. STEPHENS, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
KENNETH JACKSON JR., )
Defendant-Appellant. ) OPINION
)

Before: BATCHELDER, MOORE, and BUSH, Circuit Judges.

BUSH, J., delivered the opinion of the court in which BATCHELDER, J., joined in full,
and MOORE, J., joined in part. MOORE, J. (pp. 12–20), delivered a separate opinion dissenting
from Part II.A. of the majority opinion.

JOHN K. BUSH, Circuit Judge. Kenneth Jackson Jr. has appealed his sentence to this

court for the third time. In his first appeal, we held that Jackson’s convictions for completed

carjacking were crimes of violence under 18 U.S.C. § 924(c). However, we remanded his case to

the district court after vacating one of his firearms convictions. In his second appeal, we held that

the district court erred in applying revised penalties under the First Step Act of 2018 to his § 924(c)

convictions because the relevant provision of the Act did not apply retroactively to a defendant

who had already been sentenced. Now, Jackson asks us to reconsider the same two questions that

we previously addressed: namely, whether carjacking is a crime of violence under § 924(c) and

whether the district court should have applied the First Step Act’s revised penalties at his second
No. 22-3958, United States v. Jackson

resentencing hearing. Because we see no reason to disturb our prior holdings, we deny Jackson’s

claims and affirm the judgment of the district court.

I.

In 2017, a jury convicted Jackson of three counts of carjacking under 18 U.S.C. § 2119(2)

and three counts of brandishing a firearm during a crime of violence under 18 U.S.C.

§ 924(c)(1)(A)(ii). United States v. Jackson, 918 F.3d 467, 471 (6th Cir. 2019) (Jackson I). At

the time Jackson was initially sentenced, § 924(c) required a mandatory sentence of twenty-five

years for any subsequent violations of the statute, even if those violations occurred in the same

case. See § 924(c)(1)(A)(iii); see also United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019).

Accordingly, the district court imposed a sentence of eighty-seven months’ imprisonment for

Jackson’s three carjacking counts and consecutive sentences of seven, twenty-five, and twenty-

five years for the firearms counts. Jackson I, 918 F.3d at 477.

The First Step Act was enacted in December 2018. Section 403(a) of the First Step Act

amended § 924(c) so that the twenty-five-year mandatory minimum would not apply unless the

defendant had a prior, final conviction under the statute. First Step Act of 2018, § 403(a), Pub. L.

No. 115-391, 132 Stat. 5194, 5221–5222 (Dec. 21, 2018). The statute provides that § 403(a)

applies 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.” Id. § 403(b). Three months

later, this court vacated one of Jackson’s § 924(c) convictions and remanded his case to the district

court for resentencing. Jackson I, 918 F.3d at 471.

On remand, the district court applied § 403(a) and reduced Jackson’s sentence to fourteen

years for the two § 924(c) offenses. United States v. Jackson, 995 F.3d 522, 524 (6th Cir. 2021)

(Jackson II). However, because Jackson was no longer subject to the original 57-year mandatory

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minimum sentence under § 924(c), the court imposed an enhanced guidelines sentence of 108

months for his carjacking convictions. Id. Jackson challenged his enhanced guidelines sentence,

and the government challenged the court’s application of the First Step Act to Jackson’s § 924(c)

offenses. We held that the district court erred in applying the First Step Act at Jackson’s

resentencing because the plain meaning of § 403(b) provides that the statute’s revised penalties do

not apply to a defendant who has already been sentenced on the date the statute was enacted. More

specifically, Jackson could not benefit from § 924(c)’s revised penalties because he was sentenced

in August 2017—over one year before the First Step Act went into effect. The fact that Jackson’s

sentence was subsequently vacated did not affect our conclusion. We explained that although the

vacatur provided the “prospective legal effect” of invalidating Jackson’s prior sentence “looking

forward,” it did not “erase Jackson’s prior sentence from history” such that a sentence had never

been imposed. Jackson II, 995 F.3d at 525.

Prior to his second resentencing hearing, Jackson filed a sentencing memorandum asking

the district court to vacate his remaining § 924(c) convictions because they did not qualify as

crimes of violence under the Supreme Court’s decision in United States v. Taylor, 142 S. Ct. 2015

(2022). The district court rejected his argument and, applying penalties under the version of §

924(c) that pre-dates the First Step Act, imposed a sentence of twelve months on the carjacking

counts and consecutive seven and twenty-five-year sentences on his remaining § 924(c) offenses.

Jackson then filed this appeal.

Jackson now raises two arguments on appeal that he previously raised in his prior appeals.

First, Jackson claims that the district court erred in failing to apply the First Step Act at his

resentencing hearing. Second, Jackson asserts that his completed carjacking convictions do not

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No. 22-3958, United States v. Jackson

qualify as crimes of violence following the Supreme Court’s decisions in Taylor, 142 S. Ct. 2015,

and Borden v. United States, 141 S. Ct. 1817 (2021).

We addressed both of Jackson’s arguments in his prior appeals, and he has not presented

any legal or factual change that would disturb our prior conclusions. Accordingly, we adhere to

our previous rulings and affirm the judgment of the district court.

II.

A. WHETHER THE DISTRICT COURT ERRED IN NOT APPLYING THE FIRST STEP ACT AT
RESENTENCING

Jackson first argues that the district court erred by failing to apply the First Step Act at

resentencing, explaining that he should have benefitted from the Act’s revised penalties under

§ 403(b) because his sentence had been vacated after the statute’s date of enactment. Jackson

claims that the effect of the vacatur made his sentence a legal nullity, such that “a sentence had not

been imposed” in his case at the time of his resentencing. First Step Act of 2018, § 403(b). In

addition, Jackson argues that the district court could have applied the First Step Act at resentencing

because of the Supreme Court’s holding in Concepcion v. United States, 142 S. Ct. 2389 (2022).

There, the Court held that district courts may consider intervening changes in the law when

resentencing a defendant under § 404 of the First Step Act. We review de novo whether Jackson

is entitled to relief under the First Step Act.

The United States contends that Jackson’s argument is precluded by the law-of-the-case-

doctrine, which “promotes judicial efficiency by prohibiting parties from indefinitely relitigating

the same issue that a court resolved in an earlier part of the case.” Samons v. Nat’l Mines Corp.,

25 F.4th 455, 463 (6th Cir. 2022); United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)

(“Under the doctrine of law of the case, findings made at one point in the litigation become the

law of the case for subsequent stages of that same litigation.”); see also United States v. Clark, 225
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F. App’x 376, 378–79 (6th Cir. 2007) (“Because [a prior panel of this Court has already decided

this exact issue, it has become law-of-the-case and is binding upon the district court after remand

and upon us in this appeal.”). But we may reconsider a prior panel’s ruling in three contexts: where

“(1) substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary

view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous

and would work a manifest injustice.” United States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006)

(quoting McKenzie v. BellSouth Telecomms, Inc., 219 F.3d 508, 513 n.3 (6th Cir. 2000)).

Jackson has not presented any change in law or facts that would warrant reconsidering our

decision in Jackson II. Stated differently, under any of the Haynes prongs, Jackson fails to

establish a valid basis for us to reconsider our decision in Jackson II. We take each prong in turn.

As an initial matter, in considering the first prong of Haynes, Jackson did not present any

additional evidence indicating that he was entitled to benefit from § 403 of the First Step Act at

his resentencing.

As to the second prong, Jackson did not present any controlling authority that would require

us to rethink our prior decision. He points to the Supreme Court’s decision in Concepcion to

support his claim, but that case involves a separate section of the First Step Act and so does not

affect our holding in Jackson II. In Concepcion, the defendant was resentenced under § 404(b) of

the First Step Act, which authorizes courts to apply reduced penalties under the Fair Sentencing

Act of 2010 to defendants sentenced before that Act was enacted. 142 S. Ct. at 2397. However,

as this court has recognized, “Concepcion concerned a different and unrelated provision of the

First Step Act that explicitly applied retroactively.” United States v. McCall, 56 F.4th 1048, 1061

(6th Cir. 2022). The decision did not address whether § 403—the provision at issue in this case—

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No. 22-3958, United States v. Jackson

applies to a defendant who has already been sentenced. As such, Concepcion has no bearing on

the outcome of Jackson’s appeal.

Additionally, Jackson has not presented any decisions from our circuit that would require

us to reconsider our holding in Jackson II. The United States cites United States v. Carpenter, in

which another panel of this court followed Jackson II in declining to apply § 403 of the First Step

Act to a defendant who was “under sentence pending appeal” at the time the Act went into effect.

No. 22-1198, 2023 WL 3200321, at *2 (6th Cir. May 2, 2023) (citing Jackson II, 995 F.3d at 525).

Like in Jackson II, the court in Carpenter held that the First Step Act’s amendments did not apply

at resentencing because the defendant’s initial sentence was imposed before enactment of the First

Step Act and vacated “after the Act became law.” Id. at *2.

Moreover, the Carpenter court explained that its decision did not conflict with our prior

holding in United States v. Henry, 983 F.3d 214 (6th Cir. 2020). In Henry, we held that § 403

applied to a defendant at resentencing when the defendant’s sentence had been vacated before the

date of the First Step Act’s enactment. Id. at 217. By contrast, Carpenter’s sentence was vacated

after the statute was enacted. Carpenter, 2023 WL 3200321, at *2. Accordingly, Carpenter was

not entitled to relief at resentencing under the plain meaning of § 403(b), because a sentence “had

been imposed” in his case—albeit not a final sentence.

Because Jackson has not cited any controlling authority that contradicts our panel’s prior

decision, we are bound by that decision in the instant appeal. See, e.g., Rutherford v. Columbia

Gas, 575 F.3d 616, 619 (6th Cir. 2009) (“A published prior panel decision ‘remains controlling

authority unless an inconsistent decision of the United States Supreme Court requires modification

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No. 22-3958, United States v. Jackson

of the decision or this Court sitting en banc overrules the prior decision.’”) (quoting Salmi v. Sec’y

of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).

Finally, under the third Haynes prong, Jackson has not demonstrated that our prior decision

was “clearly erroneous and would work a manifest injustice.” Haynes, 468 F.3d at 426. We note

that an inter-circuit split exists over the proper interpretation of § 403(b)’s retroactivity provision.

See, e.g., Jackson II, 995 F.3d at 525-26. Also, there is disagreement among jurists in some circuits

that have addressed the issue. Compare, e.g., United States v. Carpenter, 2023 WL 6053553, at

*1–3 (6th Cir. Sept. 18, 2023) (Kethledge, J., concurring in denial of rehearing en banc)

(concluding that § 403 of the First Step Act did not apply to a defendant who was “under sentence

pending appeal” at the time the Act went into effect) (citation omitted) and United States v. Uriate,

975 F.3d 596, 606–09 (7th Cir. 2020) (Barrett, J., dissenting) (same) with, e.g., Carpenter, 2023

WL 6053553, at *3–5 (Griffin, J., dissenting from denial of rehearing en banc) (concluding that

§ 403 of the First Step Act did apply in those circumstances) and Uriate, 975 F.3d at 596 (en banc)

(same). But the mere lack of consensus between judges on an issue is not enough to show clear

error or manifest injustice. To the contrary, a circuit split is “good evidence that the issue is subject

to reasonable dispute.” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (quoting

Puckett v. United States, 556 U.S. 129, 135 (2009)).

Jackson has failed to demonstrate that reconsideration of Jackson II would be justified

under any of the Haynes factors. Accordingly, the district court did not err in declining to apply

§ 403 of the First Step Act at Jackson’s resentencing.

B. WHETHER COMPLETED CARJACKING CONSTITUTES A CRIME OF VIOLENCE

Next, Jackson claims that the district court erred when it found that his completed

carjacking convictions qualify as crimes of violence under 18 U.S.C. § 924(c). “[W]e review de

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novo a district court’s determination that a prior conviction is a crime of violence.” United States

v. Denson, 728 F.3d 603, 607 (6th Cir. 2013).

Jackson was sentenced under 18 U.S.C. § 924(c)(1)(A), which provides for enhanced

mandatory minimums for any person who “during and in relation to any crime of violence or drug

trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses

or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . .” The statute

defines a “crime of violence” as a felony that, under the elements clause, “has as an element the

use, attempted use, or threatened use of physical force against the person or property of another,”

or that, under the residual clause, “by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of committing the offense.”

18 U.S.C. § 924(c)(3)(A), (B). The Supreme Court held in Davis, 139 S. Ct. at 2336, that the

residual clause is unconstitutionally vague. Accordingly, we analyze Jackson’s carjacking

convictions under the elements clause to determine whether the offenses contain the use of force

as an element. And using a categorical approach, we look not to whether Jackson used force in

committing the crimes, but whether the statute always requires the government to prove that he

used, or threatened to use, force. Taylor, 142 S. Ct. at 2020 (noting that categorical approach “does

not require—in fact, it precludes—an inquiry into how any particular defendant may commit the

crime”).

Based on this standard carjacking is a crime of violence under the elements clause. Jackson

I, 918 F.3d at 486. A person is guilty of carjacking under 18 U.S.C. § 2119 when, “with the intent

to cause death or serious bodily harm,” he “takes a motor vehicle . . . from the person or presence

of another by force and violence or by intimidation.” More specifically, the requirement that a

vehicle be taken “by force and violence” or by “intimidation” requires proof that the person used,

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or threatened to use, force. See Jackson I, 918 F.3d at 486 (“[T]he commission of carjacking by

‘intimidation’ necessarily involves the threatened use of violent physical force.”); see also Wingate

v. United States, 969 F.3d 251, 263–64 (6th Cir. 2020) (holding that bank robbery under 18 U.S.C.

§ 2113(a), which may be committed “by force and violence, or by intimidation” qualifies as a

crime of violence under the elements clause). And as we noted in Jackson I, the statutory

requirement that the defendant commit the offense “with the intent to cause death or serious bodily

injury,” 918 F.3d at 486, further confirms that carjacking is a crime of violence under

§ 924(c)(3)(A).

Taylor does not change our analysis. There, the Supreme Court considered whether

attempted Hobbs Act robbery satisfies the elements clause. To convict a defendant for attempted

Hobbs Act robbery, the government must prove that “(1) [t]he defendant intended to unlawfully

take or obtain personal property by means of actual or threatened force, and (2) he completed a

‘substantial step’ toward that end.” Taylor, 142 S. Ct. at 2020. The Court held that the attempt

crime could not serve as a predicate offense under § 924(c)(3) because the statute does not require

proof that the defendant “actually harm[ed] anyone or even threaten[ed] harm.” Id. (citing ALI,

Model Penal Code § 222.1). Instead, because the statute prohibits the intent to take property by

use or threat, “along with a substantial step toward achieving that object,” the Court determined

that a defendant could be convicted of the crime without using or threatening to use force. Id. at

2020.

By contrast, Jackson was charged with completed carjacking, which requires that he

actually used force or intimidation to accomplish his goal. The Taylor Court’s concern that a

defendant may be convicted of attempted robbery for conduct occurring “before he reaches his

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No. 22-3958, United States v. Jackson

robbery victim and before he has actually engaged in threatening conduct” therefore does not apply

here. Id. at 2020–21 (citing ALI, Model Penal Code § 222.1, p. 114 (1980)).

But Jackson raises another argument. For the first time on appeal, he argues that his

carjacking convictions do not qualify as crimes of violence under § 924(c) following Borden, 141

S. Ct. 1817. In Borden, the Supreme Court held that for an offense to qualify as a “violent felony”

under the elements clause of the Armed Career Criminal Act (ACCA), the statute of conviction

must require that the defendant acted with a mens rea greater than recklessness. 141 S. Ct. at 1825.

Jackson claims that his carjacking convictions do not have a sufficiently culpable mens rea to

qualify as crimes of violence because a defendant may be convicted for reckless carjacking under

§ 2119. Jackson waived his Borden claim by failing to raise it during a prior appeal, see United

States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997). In any event, it would fail on the merits.

In United States v. Brown, the Seventh Circuit determined whether a defendant’s

conviction for “[taking] a motor vehicle from [a] person . . . by the use of force or by threatening

the imminent use of force” qualified as a predicate offense under the elements clause of the ACCA.

74 F.4th 527, 529 (7th Cir. 2023). The court found that the statute of conviction survived under

Borden because it prohibited a “taking by the use or threat of force,” which “strongly suggests that

force or intimidation must be aimed or directed at the taking of the motor vehicle.” Id. at 531.

Because the statute proscribed using force for a specific purpose—“in order to facilitate the taking

of a vehicle”—it was “not the sort of reckless use of force that Borden found to be beyond the

scope of the elements clause.” Id.

Like in Brown, Jackson’s statute of conviction proscribes using force to facilitate the taking

of a motor vehicle, which “is, by its nature, a conscious and deliberate action.” Id.; see 18 U.S.C.

§ 2119. Moreover, the federal carjacking statute expressly provides that to be convicted of

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carjacking, a defendant must act “with the intent to cause death or serious bodily injury.” 18

U.S.C. § 2119. That specific intent provision requires that the perpetrator “direct his action at, or

target, another individual,” and satisfies Borden’s requirement of a purposeful or knowing mens

rea. 141 S. Ct. at 1825. The district court therefore properly found that Jackson’s convictions for

completed carjacking qualify as predicate offenses under § 924(c)(3)(A).

III.

For the above reasons, we affirm the judgment of the district court.

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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

The majority concludes that there is no basis to reconsider our prior decisions in United States v.

Jackson, 918 F.3d 467 (6th Cir. 2019) (Jackson I), and United States v. Jackson, 995 F.3d 522 (6th

Cir. 2021) (Jackson II). Although I agree with the majority that there is no reason to disturb

Jackson I, I would hold that Jackson II was clearly erroneous and would work a manifest injustice

because it disregards basic rules of grammar and statutory interpretation, conflicts with every other

circuit to address the issue, and imposes draconian punishment on defendants, such as Jackson,

despite Congress’s clear directive to end such practices. I therefore respectfully dissent from Part

II.A of the majority opinion.

“Under the law-of-the-case doctrine, a prior ruling may only be reconsidered where:

‘(1) substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary

view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous

and would work a manifest injustice.’” United States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006)

(quoting McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 513 n.3 (6th Cir. 2000)). Because

I would hold that Jackson II is clearly erroneous and would work a manifest injustice, I will not

address the first or second Haynes factors.

Jackson II concluded that First Step Act § 403 did not apply at Jackson’s plenary

resentencing because his pre-Act sentence was vacated after the First Step Act was enacted.

995 F.3d at 523–24. For the reasons explained below, Jackson II cannot be squared with the plain

language of the First Step Act.

First, and foundationally, to support its conclusion in Jackson II, the majority rewrote the

plain language of the statute. First Step Act § 403 “shall apply to any offense that was committed

before the date of enactment [of the First Step Act], if a sentence for the offense has not been

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imposed as of such date of enactment.” First Step Act of 2018, § 403(b), Pub. L. No. 115-391,

132 Stat. 5194, 5221–5222 (Dec. 21, 2018). I will focus first on the phrase “has . . . been

imposed,”1 which Jackson II correctly identified as a phrase that is written in the present-perfect

tense. 995 F.3d at 524. “The present-perfect tense is formed by using have or has with the

principal verb’s past participle” and “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). “The

present perfect is distinguished from the past tense because it refers to (1) a time in the indefinite

past . . . or (2) a past action that comes up to and touches the present.” Id.

A sentence that has been vacated cannot be considered a sentence that “has been imposed.”

Specifically, a sentence that has since been vacated cannot fall within the first category from The

Chicago Manual because that sentence was imposed for a definite period of time, as opposed to

“a time in the indefinite past.” THE CHICAGO MANUAL OF STYLE ¶ 5.132. Stated another way,

Jackson had a sentence imposed from the date of his sentencing until the date of its vacatur. This

is a definitive time period because there are specifics dates associated with the date of sentencing

and the date of vacatur. Likewise, a sentence that has been vacated does not fit within the second

category because the sentence does not “come[] up to and touch[] the present.” Id. Even Jackson

II recognized this reality: when a sentence is vacated “it is of no legal effect anymore” because

“eliminating a sentence’s prospective legal effect . . . wipe[s] the slate clean looking forward.”

995 F.3d at 525 (citations and quotation marks omitted).2 A sentence that has been vacated cannot

1
The statute uses the phrase in the negative—has not been imposed—but courts tend to consider whether a particular
defendant does not qualify for relief under the Act because a sentence “ha[s] been imposed.” See, e.g., Jackson II,
995 F.3d at 523. For ease of reference, I will use the phrase “has been imposed.”
2
To be clear, as I previously explained, the Jackson II majority’s conclusion that vacatur is forward looking is
incorrect. See Jackson II, 995 F.3d at 527 (Moore, J., dissenting). But, even under Jackson II’s incorrect view of
vacatur, its analysis fails.

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No. 22-3958, United States v. Jackson

be captured by the phrase “has . . . been imposed” because, once vacated, the slate is wiped clean

looking forward. See Citizens State Bank v. U.S. ex rel. I.R.S., 932 F.2d 490, 493 (6th Cir. 1991)

(per curiam) (explaining that Congress’s decision to use the present-perfect tense, as opposed to

past-perfect, “suggests that Congress intended to cover only those security interests which exist

presently”).

Rather than analyze the statute as written, Jackson II, under the guise of simply looking to

the statutory text, rewrote § 403(b) from “has . . . been imposed” to “had been imposed.”3 See

Jackson II, 995 F.3d at 524 (“Our task begins with the statutory text. When, as here, the text is

clear, it ends there as well.” (citations omitted)). Indeed, Jackson II all but says so itself. Although

it correctly quoted the statute and defined the phrase “has . . . been imposed” as the present-perfect

tense, Jackson II repeatedly and exclusively used the phrase “had been imposed” to describe the

purportedly relevant inquiry under § 403(b). See 995 F.3d at 523 (“As of that day, a sentence had

been imposed on Kenneth Jackson, Jr.” (emphasis added)); id. 524–25 (“We must look at Jackson’s

status as of December 21, 2018 and ask whether—at that point—a sentence had been imposed on

him.” (emphasis added)); id. at 525 (“That Jackson was without a sentence for three months in

2019 does not change the fact that as of December 21, 2018, a sentence had been imposed on him.”

(emphasis added)); id. at 526 (“Here, the First Step Act did so expressly provide—but only for

defendants on whom a sentence had not been imposed as of December 21, 2018.” (emphasis

added)). At bottom, Jackson II amounts to a bait-and-switch in which the majority invoked the

applicable grammatical rule but then conducted an analysis based on a phrase that is not in the

statute and does not fall within that grammatical rule. Rather than interpret the statute as written,

3
“Had been imposed” is in the past-perfect tense, which “is formed by using had with the principal verb’s past
participle” and “refers to an act, state, or condition that was completed before another specified or implicit past time
or past action.” THE CHICAGO MANUAL OF STYLE ¶ 5.133.

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Jackson II rewrote the provision to support the outcome that it desired. The reasoning in Jackson

II rests entirely on this rewrite and, for that reason, it cannot stand.

Once the phrase “has . . . been imposed” is properly understood, the interpretation of “a

sentence” becomes clear. Although Jackson II concludes that “a sentence” must refer to any

sentence, even a vacated one, 995 F.3d at 524, Congress’s use of the present-perfect tense instructs

otherwise. “[A] sentence” is the object of the present-perfect verb “has . . . been imposed.” First

Step Act § 403(b). If the sentence is of no legal effect as of the date it was vacated, see Jackson

II, 995 F.3d at 525, it can no longer be considered “a sentence” that “has . . . been imposed,” First

Step Act § 403(b); instead, once vacated, it is a sentence that had been imposed. Put another way,

as the government explained in United States v. Carpenter, “it would not be coherent to say ‘a

sentence has been imposed as of 20[18], but it has since been vacated.’ Instead, an ordinary

speaker of English would say ‘a sentence had been imposed as of 20[18], but it has since been

vacated.’” Gov. Resp. to Pet. for Rehr’g at 9, United States v. Carpenter, No. 22-1198 (6th Cir.

Aug. 7, 2023), D. 34 (emphasis added).

Moreover, we must “assume[] [that] Congress is well aware of the background principle[s]

when it enacts new criminal statutes.” Dorsey v. United States, 567 U.S. 260, 274 (2012). “A

general remand [for resentencing] effectively wipes the slate clean,” and “gives the district court

authority to redo the entire sentencing process.” United States v. McFalls, 675 F.3d 599, 606 (6th

Cir. 2012); see also Pepper v. United States, 562 U.S. 476, 507 (2011) (stating that 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.”). We should not lightly put courts “in

the unusual position of giving effect to legal judgments [that have been] vacated.” Jackson II, 995

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F.3d at 527 (Moore, J., dissenting) (quoting United States v. Henry, 983 F.3d 213, 223 (6th Cir.

2020)).

By changing the language of the statute in its analysis, Jackson II attempted to bypass the

fact that the plain text of the statute—specifically the use of the present-perfect tense, as described

above—is consistent with the background principles of vacatur and resentencing and, thus,

supports their application. See 995 F.3d at 525 (reasoning that vacatur law is irrelevant because it

is forward looking and, therefore, “does not change the fact that as of December 21, 2018, a

sentence had been imposed on [Jackson]”). A post-Act resentencing court should not be in the

position of giving effect to a vacated sentence unless Congress makes clear that the typical

background principles do not apply. There is no such instruction in § 403. If Congress intended

for the typical principles of vacatur and resentencing not to apply, it could have easily said so by

changing “has” to “had,” or, as other courts have suggested, by using “initial sentence” as opposed

to “a sentence.” See United States v. Bethea, 841 F. App’x 544, 549 (4th Cir. 2021); see also

Advocate Health Care Network v. Stapleton, 581 U.S. 468, 477 (2017) (“When legislators did not

adopt ‘obvious alternative’ language, ‘the natural implication is that they did not intend’ the

alternative” (quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 16 (2014))). Congress did not

displace the well-settled principles of vacatur and resentencing, and this court is therefore not free

to ignore them.

With a corrected understanding of the phrases “has . . . been imposed” and “a sentence,”

the remainder of Jackson II’s reasoning collapses on itself. First, United States v. Henry is directly

applicable, and United States v. Richardson is distinguishable. Not only does Jackson II “adopt[]

a reading of the text that we rejected in Henry,” Jackson II, 995 F.3d at 527 (Moore, J., dissenting),

but Henry and Jackson are in the same position: at the time of resentencing, neither had a sentence

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that could be described using the present-perfect tense because their initial sentences were vacated.

In other words, although Henry and Jackson both had a sentence imposed previously, neither could

be said to have a sentence imposed presently. This, too, is why Richardson, wherein we

determined that § 403 did not apply to a defendant who had a valid sentence and a pending direct

appeal, is inapplicable. 948 F.3d 733, 748–53 (6th Cir. 2020). “When our court reviews a sentence

on direct appeal, that sentence remains ‘imposed’ unless we vacate and remand for resentencing.”

Henry, 983 F.3d at 223 (emphasis added). Despite his pending direct appeal, Richardson was

appropriately considered a defendant with a sentence that “has . . . been imposed.” First Step Act

§ 403(b). Accordingly, Jackson II directly conflicts with Henry, despite identical factual

circumstances.

Next, Jackson II explained that “Congress’s amendments to ‘an older criminal statute shall

not change the penalties “incurred” under that older statute “unless the repealing Act shall so

expressly provide,”’” and, therefore, Jackson II concluded that “the First Step Act did so expressly

provide—but only for defendants on whom a sentence had not been imposed as of December 21,

2018.” Jackson II, 995 F.3d at 526 (emphasis added) (quoting Dorsey, 567 U.S. at 272). No one

contests that First Step Act § 403 expressly provides for a change in penalties; however, Jackson

II concluded that Jackson does not benefit from this change by substituting the statute’s phrase,

“has . . . been imposed,” with the majority’s preferred phrase, “had been imposed.” See id. As

should be clear at this point, this cannot be squared with the statute’s text.

Finally, there is no basis to disagree with the other circuits that have addressed this issue.

Jackson II concluded that Bethea, the only other circuit-level case that had been decided at that

point, was not persuasive because it relied on a purported misreading of Uriarte and Henry.

Jackson II, 995 F.3d at 525–26. As explained above, however, Henry—and Uriarte, which

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addressed the same factual circumstance as Henry, and upon which Henry was based—is

indistinguishable from Jackson II. Now, the majority, in an effort to deflect attention from the true

circuit split, contends that “a circuit split is ‘good evidence that [this] issue is subject to reasonable

dispute.’” Maj. Op. at 7 (quoting United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015)).

But the majority does not attempt to cite—never mind to address—the actual composition of the

circuit split, instead pointing to the “disagreement between jurists in some circuits,” and citing to

separate writings from this court’s denial of the defendant’s petition for rehearing en banc in

Carpenter and the competing opinions in Uriarte. Maj. Op. at 7. Rather than provide “good

evidence that [this] issue is ‘subject to reasonable dispute,’” id. (citations omitted), the circuit split

is further evidence that Jackson II is clearly erroneous.

In addition to the Fourth Circuit, two circuit courts have addressed this question. The Ninth

and Third Circuits both concluded that § 403 applies to defendants who were sentenced before

December 21, 2018, but whose sentences were later vacated. See United States v. Merrell, 37

F.4th 571, 574–78 (9th Cir. 2022); United States v. Mitchell, 38 F.4th 382, 386–89 (3d Cir. 2022).

The Second Circuit appears likely to join this side of the circuit split, if given the opportunity to

decide the issue directly. See United States v. Brown, 935 F.3d 43, 49 (2d Cir. 2019) (vacating the

defendant’s sentence, remanding for plenary resentencing, and stating that “[r]esentencing will

also afford [the defendant] the opportunity to argue that he should benefit from section 403(b) of

the First Step Act of 2018”); United States v. Walker, 830 F. App’x 12, 17 n.2 (2d Cir. 2020)

(noting that the “government agreed that at a resentencing that would occur as a result of our

remand, [defendant] would benefit from the [FSA’s] reforms”).

If that were not enough, the government has also changed its position since Jackson II. At

Jackson’s first resentencing and before this court in Jackson II, the government argued that

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§ 403(b) does not apply at resentencing. See Appellee Br. at 9–10. Now, the government has

taken the opposite position. Appellee Br. at 21 n.3; see also Gov. Resp. to Pet. for Rehr’g at 5,

United States v. Carpenter, No. 22-1198 (6th Cir. Aug. 7, 2023), D. 34. The government explained

that it changed its position on this issue because it determined that its prior position—and Jackson

II—was incorrect. Appellee Br. at 21 n.3; see also Gov. Resp. to Pet. for Rehr’g at 5, United States

v. Carpenter, No. 22-1198 (6th Cir. Aug. 7, 2023), D. 34 (stating that “the government has

reconsidered its position and now concludes that the best reading of Section 403 is that the

section’s amended statutory penalties apply at any sentencing that takes place after the Act’s

effective date” and then arguing that “Jackson [II] was wrongly decided”). In light of the growing

circuit split, the government’s changed position, and the grammatical errors underlying Jackson

II’s statutory interpretation, I would hold that Jackson II was clearly erroneous.

In terms of whether Jackson II would work a manifest injustice, the import of this decision

is clear. As Judge Griffin stated in Carpenter, Jackson II not only affects defendants arguing that

§ 403 should apply to them at resentencing, but it will likely impact how this circuit interprets

§ 401(c) of the First Step Act, which uses identical language. See Carpenter, 80 F.4th at 795

(Griffin, J., dissenting from denial of rehearing en banc) (“[O]ur interpretation of the statutory

language at issue matters to more than just cases involving firearms . . . . The Act uses identical

language in § 401(c), which applies the Act’s benefits to offenders sentenced for certain drug

offenses . . . . 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 . . . .” (citations omitted)). And, as Judge Bloomekatz explained, “[t]he real

human costs that this esoteric legal issue presents . . . should not be overlooked.” Id. at 796

(Bloomekatz, J., dissenting from denial of rehearing en banc). For example, Jackson’s sentence is

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five years longer and Carpenter’s “sentence is eighty years longer than [they] would be if [these

defendants] had been resentenced in the seventeen states that comprise the Third, Fourth, and

Ninth Circuits. The resulting sentencing disparity . . . should give us pause . . . .” Id. at 797.

I would therefore hold that Jackson II would work a manifest injustice.

Accordingly, I would hold that Jackson II was clearly erroneous and would work a manifest

injustice such that it should be reconsidered. I respectfully dissent.

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