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 which any finality interests are any longer present,” and urged the justices to rely on the background legal convention that vacatur undoes the continuing legal effect of a sentence.

Government and other opposing amicus counsel advanced a different reading. The court-appointed amicus, Mr. McGinley, told the justices that petitioners “do not qualify for retroactive relief under section 403(b) of the First Step Act,” arguing that the statute’s plain language refers to the historical imposition of a sentence as of the enactment date (12/21/2018) and that the federal savings statute and other retroactivity principles weigh against reading the provision more broadly.

Several justices pressed both sides on grammar, statutory context and policy consequences. Justice Kagan described an intuitive reading that Congress had in mind the class of people who had committed offenses but had not yet been sentenced when the Act took effect; she asked petitioners’ counsel whether that intuition was mistaken. Justice Sotomayor queried whether the result would produce arbitrary disparities among codefendants or among people who committed the same acts on the same day. Justice Alito and others focused on whether present‑perfect tense (“has been imposed”) in the statute ordinarily denotes continuing legal effect or simply a past event in context.

Counsel and the amicus cited related statutes and precedents in their arguments. Speakers referenced the First Step Act §403(a)–(b), the felon‑in‑possession statute (18 U.S.C. §922(g)(1), cited as a parallel to the treatment of vacated convictions), the statutory prohibition on modifying sentences once they “have been imposed” (18 U.S.C. §3582(c) was discussed in argument), and this Court’s precedent addressing retroactivity and statutory interpretation (including Dorsey and Lewis, among others). Petitioners’ counsel relied on background legal conventions and examples where vacatur is treated as undoing the sentence for some legal purposes; government counsel emphasized the textual reading and the savings statute principle in §109.

Argumenters also discussed practical magnitudes on the record: counsel said the current universe of defendants who have already benefited under the broader interpretation is small (the transcript noted 16 offenders known to have benefited and eight additional cases where the question remained open). Counsel also described the sentencing differences at issue: petitioners’ minimum aggregate sentences were described as substantially higher under the prior “stacking” regime (petitioner counsel described minimums in the range of roughly 130–135 years reduced to roughly 50–55 years as a result of Section 403(a) — figures the court discussed as minimum estimates, with district courts retaining discretion to impose higher sentences).

The Court finished argument without announcing a decision and took the case under submission.

The case will determine whether courts at resentencing must apply the updated mandatory‑minimum rules in Section 403(a) when an earlier sentence had been vacated after the First Step Act’s enactment, or whether the statute excludes anyone who had any sentence imposed before enactment even if that sentence was later vacated.

The case was submitted.