United States v. Merrell

• Decision Date: 10 June 2022
• Docket Number: 20-30183, No. 20-30189, No. 21-30043
• Citation: 37 F.4th 571
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Verne Jay MERRELL, aka Thomas C. James, aka Jay, aka Carl Avery Martell, aka Jay Merrell, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Robert Sherman Berry, aka Jim Preston, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Charles Harrison Barbee, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

37 F.4th 571

UNITED STATES of America, Plaintiff-Appellee,

v.Verne Jay MERRELL, aka Thomas C. James, aka Jay, aka Carl Avery Martell, aka Jay Merrell, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Robert Sherman Berry, aka Jim Preston, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Charles Harrison Barbee, Defendant-Appellant.

No. 20-30183

No. 20-30189

No. 21-30043

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2022 Seattle, Washington

Filed June 10, 2022

Zachary L. Ayers (argued) and Walter L. Ayers, Ayers Law Firm P.L.L.C., Spokane, Washington, for Defendant-Appellant Robert Sherman Berry.

Mark E. Vovos (argued), Mark E. Vovos P.S., Spokane, Washington, for Defendant-Appellant Charles Harrison Barbee.

Jeffrey S. Niesen, Spokane, Washington, for Defendant-Appellant Verne Jay Merrell.

Joseph H. Harrington (argued), Assistant United States Attorney; Vanessa R. Waldref, United States Attorney; United States Attorney's Office, Spokane, Washington; for Plaintiff-Appellee.

Before: Danny J. Boggs,^* Andrew D. Hurwitz, and Jennifer Sung, Circuit Judges.

Opinion by Judge Hurwitz ;

Dissent by Judge Boggs

HURWITZ, Circuit Judge:

These consolidated cases arise out of two significant recent developments in federal criminal law. The first was the adoption of the First Step Act of 2018, amending 18 U.S.C. § 924(c)(1), which mandates enhanced sentences for crimes of violence involving the use of firearms. See Pub. L. No. 115–391, tit. IV, § 403, 132 Stat. 5194, 5221–22 (2018). The second was the decision of the Supreme Court in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held the "residual clause" in 18 U.S.C. § 924(c)(3)(B) unconstitutional.¹

Verne Merrell, Robert Berry, and Charles Barbee ("appellants") were convicted in 1997 of various offenses, including four "crimes of violence" subject to the sentencing rubric of § 924(c)(1). After Davis , the district court granted 28 U.S.C. § 2255 relief, vacating two of the § 924(c) convictions and resentencing appellants on the remaining § 924(c) convictions. The question for decision is whether the original version of § 924(c)(1) or the version as amended by the First Step Act governed that resentencing. The district court declined to apply the First Step Act. Because we hold that the First Step Act applies when sentences imposed before the Act's passage are vacated and defendants are resentenced after the Act's passage, we vacate and remand.²

A.

In 1996, appellants committed a series of bank robberies and bombings in Spokane, Washington. After two trials they were convicted of a variety of offenses. As relevant here, those convictions included four counts—Counts Three, Five, Seven, and Nine—charging crimes of violence involving the use of firearms. Count Three charged the use of a destructive device during the arson of a newspaper building on April 1, 1996; Count Five charged the use of a destructive device during a bank robbery on April 1, 1996; Count Seven charged the use of a destructive device during the arson of a Planned Parenthood building on July 12, 1996; and Count Nine charged the use of a firearm during a bank robbery on July 12, 1996.³

In 1997, § 924(c)(1) required a minimum sentence of five years for use of a firearm "in relation to any crime of violence," and a sentence of thirty years "if the firearm is a machinegun, or a destructive device." Id. "In the case of [a defendant's] second or subsequent conviction under this subsection," the statute then mandated a sentence of twenty years, or a life sentence "if the firearm is a machinegun, or a destructive device." Id. At the time, the qualifying "second or subsequent conviction" could arise from the same trial and indictment as the "first" conviction. See Deal v. United States , 508 U.S. 129, 132–37, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) ; Davis , 139 S. Ct. at 2324 n.1. And, multiple sentences imposed under § 924(c)(1) were required to be consecutive, or "stacked." See 18 U.S.C. § 924(c)(1) (1996).

Accordingly, the district court sentenced appellants to thirty years on Count Three, which involved use of a destructive device, consecutive life sentences on Counts Five and Seven, which also involved using a destructive device, and a consecutive sentence of twenty years on Count Nine. Appellants' convictions and sentences were affirmed on direct appeal. United States v. Merrell, et al. , 182 F.3d 929 (9th Cir. 1999) (unpublished).

After Davis was decided, the district court granted § 2255 relief, vacating the convictions on Counts Three and Seven because the underlying predicate offenses for the § 924(c) convictions, violations of 18 U.S.C. § 844(i), no longer qualified as crimes of violence after the invalidation of the residual clause. See 139 S. Ct. at 2336. The district court then resentenced appellants on the two remaining § 924(c) convictions, Counts Five and Nine, both of which were predicated on convictions for armed bank robbery in violation of 18 U.S.C. § 2113(a). The court "stacked" the sentences, imposing a 30-year sentence on Count Five and a 20-year consecutive sentence on Count Nine, which the court treated as a "second or subsequent conviction" under § 924(c)(1).⁴

The First Step Act, enacted on December 21, 2018, allows § 924(c)(1) sentencing enhancements for a second or subsequent conviction only "after a prior [ § 924(c) ] conviction ... has become final," Pub. L. 115–391, tit. IV, § 403(a), 132 Stat. at 5221–22, and thus abrogates the Deal rule allowing enhancements based on convictions arising out of the same indictment and trial, see 508 U.S. at 136–137, 113 S.Ct. 1993. The district court rejected appellants' contentions that the First Step Act applied to their resentencing. Appellants timely appealed.⁵

B.

In § 403(b) of the First Step Act, entitled "Applicability to Pending Cases," Congress provided that the statute applied to "any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." Pub. L. 115–391, tit. IV, § 403(b), 132 Stat. at 5222. Appellants' offenses were committed before the date of enactment. The question is how to interpret the second clause in § 403(b), which applies the Act to such cases "if a sentence for the offense has not been imposed as of such date of enactment." Id. More particularly, the issue is whether that clause bars application of the Act to cases like these, in which sentences imposed before the date of enactment were subsequently vacated, and new sentences were imposed after the date of enactment.

We have not previously confronted that issue. In United States v. Voris , we held that the Act does not apply to a direct appeal by a defendant sentenced before its enactment. 964 F.3d 864, 875 (9th Cir. 2020). But Voris expressly left open whether § 403(b) makes the Act applicable when a defendant's pre-enactment sentence is vacated and a new sentence must be imposed after the date of enactment. See id. at 875 n.12.

Our sister Circuits, however, have confronted this question and closely related ones, albeit with varying results. The Sixth Circuit has held that the First Step Act applied to a resentencing after the date of enactment when the original sentence was vacated before that date, see United States v. Henry , 983 F.3d 214, 222 (6th Cir. 2020), but later declined to apply the Act to a case, like those here, in which the sentence was vacated after enactment, see United States v. Jackson , 995 F.3d 522, 525–26 (6th Cir. 2021). The Third Circuit has declined to apply the First Step Act to a sentence vacated before the date of enactment. See United States v. Hodge , 948 F.3d 160, 161–62 (3d Cir. 2020). In contrast, the Seventh Circuit has held that the Act applies to defendants whose sentences were vacated before Congress enacted the legislation and who were awaiting resentencing thereafter. United States v. Uriarte , 975 F.3d 596, 602–05 (7th Cir. 2020) (en banc). And the Fourth Circuit, analyzing an identical provision in § 401(c), which deals with drug felonies, has held that the First Step Act applies to defendants whose original sentences were vacated after the legislation was enacted. United States v. Bethea , 841 F. App'x 544, 549–50 (4th Cir. 2021). Although these cases involved varying scenarios, the critical issue in each was whether the reference in § 403(b) to "a sentence" means "any sentence," even a vacated one.⁶

C.

The government argues that the phrase "a sentence" in § 403(b) must be read as "any sentence," and that the First Step Act therefore applies retroactively only to those who committed offenses before its enactment but had never been sentenced by that date. Agreeing with the Seventh and Fourth Circuits, however, we hold that because vacatur of the prior sentences in the cases before us "wiped the slate clean," Pepper v. United States , 562 U.S. 476, 507, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), "a sentence ... ha[d] not been imposed" for purposes of § 403(b) at the time of resentencing. See Uriarte , 975 F.3d at 601–602 ; see also Bethea , 841 F. App'x at 550 ("[T]he district court's vacatur and reentry of judgment nullified Bethea's original sentence such that a sentence cannot legally be said to have been imposed until [the date of resentencing].").

The government relies heavily on the Third Circuit's statement that § 403(b) "conditions the reduced mandatory minimum's retroactive application on the imposition of a sentence—not the sentence, an ultimate sentence, or a final sentence." Hodge , 948 F.3d at 163. But, unlike the Third Circuit, we do not find Congress's use of that article in § 403(b) dispositive. As the Seventh Circuit noted, "one could draw significance from the fact that Congress did not use the words ‘an original sentence’ or ‘an initial sentence.’ " Uriarte , 975 F.3d at 604. And like the Seventh Circuit, we find that the use of...