Sixth Circuit Splits Circuits with First Step Act Retroactivity Holding

 The 2018 First Step Act dramatically altered the ability of courts to stack convictions under 18 U.S.C. § 924(c). It also made this change retroactive to the class of defendants for whom “a sentence for the offense has not been imposed as of such date of enactment.” In United States v. Jackson, the Sixth Circuit considered whether the retroactivity provision applied to a defendant whose sentence had been vacated after the Act's enactment. 

In 2017, a jury convicted Jackson of three counts of carjacking and three counts of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). While he appeal was pending, Congress enacted the First Step Act. The Court subsequently vacated one of his three 924(c) convictions and remanded his case for resentencing. During the resentencing hearing, the district court held that the First Step Act applied to Jackson's 924(c) convictions but increased his sentence under the Guidelines and in the absence of otherwise applicable mandatory minimum sentences. Jackson appealed his sentence, and the Government appealed the district court's retroactivity ruling.

On appeal, the Court held that the First Step Act's retroactivity provision would not apply if the defendant's sentencing process had ended by the date of the Act's enactment. Additionally, the Court held that the retroactivity clause does not refer only to the final sentence the defendant receives. 

Noting it had vacated Jackson's sentence after the First Step Act's enactment, the Court held that his sentence had been imposed at the time and that the Act's retroactivity clause did not apply. The Court also rejected the argument raised by the amici that the First Step Act's amendments should apply to all resentencing hearings based on the principal that courts are to apply the law in effect at the time they make their decision. This principle did not apply in Jackson's case, the Court held, because the Act expressly provided otherwise.

In its opinion, the Court noted it was departing from the Fourth Circuit's decision in United States v. Bethea that held the retroactivity clause applied to a vacated sentence such as Jackson's. Thus, there is apparently a split among the circuits as to this issue.

The Court's decision in Jackson indicates litigation over the application of the First Step Act is far from over among the federal circuits. For Kenneth Jackson, however, the Court's decision now means he likely faces two mandatory minimum sentences instead of a sentence of 107 months.