Richardson Revisited...Again.

In June 2013, a jury convicted Frank Richardson of five counts of aiding and betting Hobbs Act robbery, five counts of aiding and abetting the use of a firearm during and relation to a crime of violence under § 924(c), and one count of being a felon in possession of a firearm. His first § 924(c) conviction carried a mandatory seven year sentence that ran consecutively to his other sentences, and each subsequent § 924(c) conviction carried a mandatory 25 year sentence to run consecutively to his other sentences. In all, the district court sentenced Richardson to 1,494 months (over 124 years) in prison.

The United Supreme Court ultimately remanded Richardson's first appeal to the Sixth Circuit to consider whether its decision in Johnson v. United States affected his § 924(c) convictions. On remand, the Court again affirmed his conviction and sentence, holding that Richardson's convictions for aiding and abetting Hobbs Act robbery satisfied § 924(c)'s elements clause.

While Richardson's petition for certiorari from this decision was pending, the First Step Act of 2018 became law. Recognizing this fact, Richardson filed a supplemental brief in support of his certiorari petition. The Supreme Court, in turn, vacated the Court's judgment and remanded the case with instructions to consider whether the Act affected Richardson.

Richardson's third appearance before the Court did not change the outcome. In a lengthy opinion, the Court first reissued its earlier decision affirming Richardson's conviction and holding, again, that aiding and abetting a Hobbs Act robbery satisfied § 924(c)'s elements clause. In addition, it rejected certain additional arguments Richardson tried to raise in his third appeal, arguing that its previous remand to the district court was limited to considering the impact of Johnson on his sentence and that he had forfeited those arguments by not raising them in his initial appeal.

In the second part of its opinion, the Court rejected Richardson's argument that the district should resentence him in light of the enactment of the First Step Act of 2018. Critically, the Act made a significant change to what constituted a prior conviction under § 924(c), which, in Richardson's case, would have meant that he would have received a seven year mandatory consecutive sentence for each § 924(c) conviction -- instead of 25 years -- because each conviction would not have been "final" under the Act. The Court rejected this argument, holding that defendants, such as Richardson, who had been sentenced prior to December 21, 2018, could not take advantage of its provisions. In reaching this conclusion, the Court found that the Act created new law rather than clarified existing law, as Richardson had argued. Finally, the Court rejected Richardson's argument that the Act should apply to him because he had not exhausted his direct appeals, holding that a sentence is "imposed" when the trial court announces the same.

Although they were ultimately unsuccessful, this case highlights excellent advocacy by Richardson's counsel. It also demonstrates that there are plenty of creative arguments to make on behalf of defendants in the post-Johnson and First Step Act world.