Supreme Court Clarifies Applicability of First Step Act to Vacated Sentences

In Hewitt v. United States, 606 U.S. ____ (2025), a divided U.S. Supreme Court held that the First Step Act’s sentencing reduction provisions apply to defendants whose previous sentences have been vacated and who need to be resentenced following the Act’s enactment.

Facts of the Case

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

In 2009, petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross were convicted of multiple counts of bank robbery and conspiracy to commit bank robbery, along with corresponding §924(c) offenses for use of a firearm during a crime of violence. Each petitioner received a mandatory 5-year sentence for his first §924(c) count of conviction and, despite being first-time offenders, each received 25-year mandatory sentences on every §924(c) count beyond his first. Thus, each petitioner’s sentence exceeded 325 years.

Petitioners successfully challenged some of their convictions on direct appeal, and the Fifth Circuit Court of Appeals vacated petitioners’ sentences. In 2012, the District Court resentenced each petitioner to between 285 and 305 years on the counts that remained.

In 2019, the Supreme Court held in United States v. Davis, 588 U.S. 445 (2019) that the “crime of violence” definition the Government routinely used to support some §924(c) convictions was unconstitutionally vague. Because that holding potentially affected some of petitioners’ remaining convictions, the Fifth Circuit granted petitioners authorization to file a second or successive postconviction motion. The District Court then vacated the impacted §924(c) convictions, as well as petitioners’ sentences. 

When the District Court held resentencings for the remaining convictions, petitioners argued that the First Step Act’s 5-year—not 25-year—mandatory minimum penalties applied. Petitioners argued they were entitled to retroactive application of the Act’s more lenient penalties because a vacated prior sentence is not a sentence that “has . . . been imposed” for purposes of §403(b). The District Court disagreed and resentenced petitioners under the pre-Act sentencing scheme, giving them stacked 25-year mandatory minimums for each §924(c) count of conviction beyond their first. Accordingly, petitioners each received sentences of 130 years or more. On appeal, petitioners and the Government agreed that the First Step Act should have applied at petitioners’ resentencings. The Fifth Circuit denied their joint request for vacatur. It held that §403(b) applies only “to defendants for whom ‘a sentence . . . ha[d] not been imposed’ as of the enactment date.” Because each petitioner had been sentenced (twice) prior to the Act’s enactment, the panel concluded that petitioners were not eligible for the First Step Act’s more lenient mandatory minimums.

Supreme Court’s Decision

The Supreme Court reversed by a vote of 5-4. The majority held that that under §403(b) of the First Step Act, a sentence “has . . . been imposed” for purposes of that provision if, and only if, the sentence is extant—i.e., has not been vacated. Thus, the Act’s more lenient penalties apply to defendants whose previous §924(c) sentences have been vacated and who need to be resentenced following the Act’s enactment.

In reaching its decision, the majority cited the express language of the statute, specifically

the use of the present-perfect tense. Writing for the majority, Justice Ketanji Brown Jacksonemphasized that Congress employed the present-perfect tense, requiring evaluation of whether “a sentence . . . has . . . been imposed” upon the defendant, rather than the past-perfect tense that would exclude anyone upon whom a sentence “had” been imposed.

According to the majority, the context and enactment history of the First Step Act and §403(b) further demonstrate that Congress’s choice of the present-perfect tense was not accidental. “Rather, Congress was reacting to sustained criticism of the prior sentencing scheme, and with §403(b), it intended to execute a clean break from the controversial and heavily contested ‘stacking’ practice,” Justice Jackson explained.
The majority also relied on the principles of judicial vacatur in reaching its decision, citing that vacated court orders are void ab initio and thus lack any prospective legal effect. A defendant whose conviction has been vacated “is to be treated going forward as though he were never convicted,” Justice Jackson wrote.“Section 403(b) reflects this ‘common-sense’ understanding of background vacatur principles,” she added.