Supreme Court Weighs Whether First Step Act §403 Applies at Resentencings After Vacatur

The U.S. Supreme Court heard argument in Hewitt v. United States and consolidated cases over whether section 403 of the First Step Act applies at plenary resentencings after a prior sentence has been vacated.

The question presented is whether the statutory phrase “a sentence for the offense has not been imposed as of the date of enactment” (Section 403(b)) refers only to the historical fact that a judge pronounced a sentence before enactment, or instead refers to an operative sentence that remains in effect at the time a later resentencing occurs. The outcome will determine whether some defendants who previously received long, stacked mandatory-minimum sentences can obtain the First Step Act’s protections when their earlier sentences were vacated.

Counsel for the petitioners, Mr. Kimberly, argued the statute should be read to permit application of Section 403(a) at resentencings following vacatur because a vacated sentence “is treated as though it never was imposed.” Mr. Kimberly told the court, “Once a vacator has been entered, the case is no longer a past case as to…