United States v. Merrell, et al (9th Cir. June 2022)

The Federal Docket

June 28, 2022

Verne Merrell, Robert Berry, and Charles Barbee were originally sentenced in 1997 for offenses including carrying a firearm under 18 USC 924(c), which carries a mandatory minimum of five years, consecutive to any other sentence imposed, and a minimum of 25 years for any subsequent convictions under 924(c). The petitioners were recently granted federal habeas relief on the basis that, between the time they were sentenced and the date that their sentences were later vacated, Congress amended 18 USC 924(c) so that “subsequent convictions” would not include 924(c) counts in a single indictment. The provision was not made retroactive by Congress, but the district court granted habeas relief since the resentencing occurred after the amendment.

On appeal, the Ninth Circuit considered whether defendants being resentenced today based on a void prior sentence under 924(c) should be sentenced under the new version of the statute. Under Rule 403(b) of the First Step Act, which amended 924(c), the law states that the new version of the statute should be applied at sentencing for “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.”

By its own terms, the law stated that it would apply to any offense committed before its enactment so long as a sentence had not yet been imposed. The Ninth Circuit interpreted this to include Merrell, Berry, and Barbee’s sentences, even though they were not vacated until after the law’s enactment, since the original sentence was declared void by the habeas court. Thus, their new sentences qualified as ones not yet imposed whether their convictions were vacated before or after the law was enacted.

The 3 other circuits to consider the applicability of the retroactivity provision to convictions vacated before the law’s enactment have split; the Sixth and Seventh Circuits have held that it does, while the Third Circuit has held that it does not. In considering convictions vacated after the law was enacted, the Sixth Circuit and Fourth Circuit have also split.

Judge Boggs dissented, arguing the provision’s plain language yielded a different result

Appeal from the Eastern District of Washington
Opinion by Hurwitz, joined by Sung
Dissent by Boggs

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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