Judges disagree on denial of rehearing en banc on First Step Act retroactivity language

The Sixth Circuit denied en banc review of its decision in United States v. Carpenter, and the majority of active judges weighed in on the denial. This leaves intact the court’s holding that the First Step Act did not apply to Mr. Carpenter’s resentencing because his first sentence was not vacated until after the Act became law and thus was not “imposed as of such date of enactment” as required by Section § 403. United States v. Carpenter, No. 22-1198, 2023 WL 3200321, at *2 (6th Cir. May 2, 2023). 

Judge Kethledge (who wrote the original Carpenter opinion), joined by Chief Judge Sutton and Judges Thapar and Bush, concurred with the denial. He defended the court's decision in United States v. Jackson, 995 F.3d 522 (6th Cir. 2021), cert. denied, 142 S. Ct. 1234 (2022), which controlled the outcome in Carpenter. He wrote that “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.” Carpenter at 4. That aside, Judge Kethledge described Mr. Carpenter’s sentence as “extreme by any measure,” a situation he primarily blamed on Congress’s mandatory minimum sentencing law. Id. at 6.

Judge Griffin, joined by Judges Moore and Stranch, dissented. He explained that Jackson was wrongly decided and wrote that the language in Section § 403 "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?” Id. at 7. He argued for the latter, presuming that Congress intended the common-law meaning for a vacated sentence: “ab initio, as if it never happened,” and noted that all sister circuits considering this issue have gone the other way.

Finally, in her first authored opinion, Judge Bloomekatz, joined by Judges Moore, Clay, Griffin, Stranch, and Mathis, also dissented, describing the case as one with “all the hallmarks of one that warrants the full court's consideration.” Id. at 12. In her view, Carpenter “clashes” with the prior decision in United States v. Henry, 983 F.3d 214 (6th Cir. 2020) and is “exceptionally important:”

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. . . . 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. 

Id. at 13. 

The denial of en banc review cements a circuit split on this issue, one the Supreme Court will likely resolve.