6/10/22: Two sentencing cases today

First, in United States v. Merrell, --- F.4th ---, No. 20-30183 (9th Cir. 2022), the Court vacated the sentences imposed at resentencing on two 18 U.S.C. § 924(c) counts and remanded for resentencing. 

The issue was whether the First Step Act applies when sentences imposed before the Act’s passage are vacated and defendants are resentenced after the Act’s passage.    

"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.  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.”  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."

The Court held it did not. 

"We start from the settled principle that the vacatur of appellants’ original sentences legally 'wiped the slate clean.'"

"We note that Congress enacted the First Step Act to reduce the severity of sentences for certain 'stacked' charges, including § 924(c) convictions."

A "vacated sentence—a legal nullity— therefore cannot form the legal predicate for the exclusion from the application of the First Step Act—which Congress expressly made retroactive under § 403(b)."

Second, in United States v. Tagatac, --- F.4th ---, No. 21-10133 (9th Cir. 2022), the Court affirmed the sentence.   The Court held that Hawaii's second-degree robbery statute, Haw. Rev. Stat. § 708-841 (1986), was divisible and Tagatac’s conviction under subsection (b) was a crime of violence.