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DOING IT OVER UNTIL YOU GET IT RIGHT
Mike Henry and an accomplice robbed three banks. In each robbery, Mike’s co-conspirator used a gun. A jury convicted Mike of the three robberies and three counts of using a gun in a crime of violence under 18 USC § 924(c). A § 924(c), you may recall, carries a mandatory sentence of at least five years (more if you brandish it or, God forbid, actually fire it).
In 2013, Mike got 70 months concurrent for the three robberies and 60 months for the first § 924(c) conviction. Because back then, a second or subsequent § 924(c) conviction carried a mandatory sentence of 300 extra months got a total of 600 months (50 years, that is), for each of the next two § 924(c)s. Mike ended up with a sentence of 730 months (about 61 years in prison).
Mikes’s conviction was reversed because of the intervening Supreme Court decision in Rosemond v United States, which held that an accomplice had to have some level of knowledge that is co-conspirator had a gun. But after retrial, Mike’s sentence got marginally worse, increasing by eight months to 738 months. But while Mike was on appeal the second time, the Supreme Court’s Dean v. United States decision was handed down (holding that judges could adjust the underlying sentence to account for the mandatory § 924(c) sentence), and Mike’s sentence got reversed again in 2018.
By the time Mike was resentenced a second time, the calendar had flipped to 2019, and the First Step Act had passed. First Step Act § 403 amended 18 USC § 924(c) so that subsequent convictions of the statute carried a 300-month mandatory minimum only if the defendant had been previously been convicted of a § 924(c) offense. Which, of course, Mike had not.
But First Step was not retroactive. Instead, § 403 applied only to an “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.” On his latest appeal, Mike argued that First Step § 403 applied to his case, and his sentences for the second and third § 924(c) offenses should have only been 60 months apiece, not 300 months apiece.
Last week, the 6th Circuit agreed. The Court said the plain language of § 403(b) supported its conclusion that the First Step Act applies to defendants whose cases were remanded prior to the First Step Act’s enactment but who were resentenced only after its enactment. At the time of the First Step Act’s enactment, the Circuit ruled, Mike “did not have ‘a sentence” for the purposes of § 403(b), because his case had been remanded case to the district court for resentencing. “Only when the district court ‘imposed’ Henry’s sentence for his various convictions at his 2019 resentencing did he have a sentence for the purposes of § 403“, the 6th said. “The better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at some point… Therefore, Henry is eligible for sentencing under First Step Act § 403.”
This time, some 480 months should come off the sentence, leaving him with a still hefty 250 months (about 21 years). But it leaves Mike with a chance of hugging his grandkids someday.
United States v. Henry, Case 19-2445, 2020 U.S. App. LEXIS 39799 (6 Cir Dec 18, 2020)
– Thomas L. Root