By 5-4 vote, Supreme Court in Hewitt allow district court to apply more lenient law at FSA resentencings

The Supreme Court this morning handed down its final big sentencing opinion of the Term with Hewitt v. United States, No. 23-1002 (S. Ct. June 26, 2025) (available here). The vote was 5-4, and here are the particulars of the votes of the Justices: 

JACKSON, J., delivered the opinion of the Court with respect to Parts I, II, and III, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined, and an opinion with respect to Parts IV and V, in which SOTOMAYOR and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, KAVANAUGH, and BARRETT, JJ., joined.

Here is how Justice Jackson’s opinion for the Court gets started:

Before the First Step Act was enacted in 2018, federal judges were required to sentence certain first-time offenders convicted of violating 18 U. S. C. §924(c)—a law that criminalizes the possession of a firearm while committing other crimes — to “stacked” 25-year periods of incarceration. The First Step Act, 132 Stat. 5194, eliminated this harsh mandatory minimum penalty.  Congress also made the Act’s more lenient penalties partially retroactive. Section 403(b) specifies that the Act applies if a sentence “has not been imposed” upon an eligible §924(c) offender as of the date of the First Step Act’s enactment. Id., at 5222.

The question presented here concerns an edge case: What penalties apply when a §924(c) offender had been sentenced as of the Act’s enactment, but that sentence was subsequently vacated, such that the offender must face a post-Act resentencing?  We hold that, under that circumstance, a sentence “has not been imposed” for purposes of §403(b).  Thus, the First Step Act’s more lenient penalties apply.

Here is how Justice Alito’s dissent gets started:

In the First Step Act of 2018, Congress reduced the mandatory-minimum sentence for certain firearm offenses.  Like all changes to sentencing law, this amendment applies prospectively.  But Congress also thought it wise to apply the amendment to “Pending Cases.”  Of course, “Pending Cases” does not mean “All Cases,” and Congress limited the retroactive reach of the amendment to defendants for whom “a sentence for the offense has not been imposed as of [the Act’s] date of enactment.” 132 Stat. 5222.  In other words, the amendment applies retroactively only if the defendant had yet to be sentenced when Congress passed the Act in 2018.  Petitioners, who were sentenced in 2010, do not come close to meeting that test.

Today, the Court disfigures the Act in order to reach a different result.  Its interpretation relies on two necessary premises.  First, the Court insists that what Congress really meant to say is that the amendment applies retroactively unless “a legally valid sentence” is in force on the Act’s date of enactment.  Second, to get around the fact that petitioners did have “legally valid” sentences when the Act was passed, the Court invents a novel “vacatur” principle. The Court tells us that the 2022 vacatur of petitioners’ sentences rendered those sentences legal nullities from their inception.  The Court’s interpretation thus unspools the Act’s carefully wound retroactivity command to mean that any defendant whose sentence is vacated at any time and for any reason may claim the benefit of the Act’s reduced mandatory minimum.  But nothing in the text or broader context supports such a boundless interpretation.  Indeed, the portions of today’s decision that command the votes of only three Justices give the game away.  Animating the Court’s atextual interpretation is a thinly veiled desire to march in the parade of sentencing reform.  But our role is to interpret the statute before us, not overhaul criminal sentencing.

Once I get the chance to read these opinions a few times, I am sure I will have more to say about them.