By John R. Byrne
Interesting debate between a dissenting Judge Rosenbaum and the majority (consisting of Judges Newsome and Luck) in a case applying the First Step Act. One defendant-friendly provision in the act limits a court's ability to "stack" 924(c) convictions that flow from one indictment. But it only comes into play if, as of the date of the First Step Act's enactment, "a sentence for the offense has not been imposed."
Of course, the anti-stacking provision would help a defendant who was convicted on multiple 924(c) counts before the the First Step Act was passed but was sentenced after the Act was passed because, in such an instance, at the time the Act was passed, a sentence "has not been imposed." But what about a defendant who was both convicted and sentenced before the Act was passed but then had his sentence vacated? Put another way, can a court treat such a vacated sentence as one that "has not been imposed"?
The majority says "no," noting that the reference to an imposed sentence speaks to the historical fact of a sentence being imposed. In other words, chronology controls. If a defendant was sentenced before the passage of the First Step Act, he/she can't take advantage of the anti-stacking rule, even if that sentence is later vacated. Judge Rosenbaum strongly disagrees, arguing that, once vacated, the prior sentence should be treated as if it doesn't exist (basically, it should be wiped from the chronology). Lots of discussion of textualism as the controlling mode of statutory interpretation. Worth a read.
Hernandez by John Byrne on Scribd
The dissent is so much clearer, more logical, and just downright correct. The majority is playing semantic games when they conclude that "a sentence" includes vacated sentences, and that if congress only wanted valid sentences that they could have been more specific.
ReplyDeleteIf the sentence wasn't valid and was vacated, there is, and was, no sentence whatsoever. The dissent's touchdown analogy is perfect. If you score a touchdown but it's called back by the refs, it turns out that you never scored a touchdown at all - you just thought you did but you were wrong. If the trial judge imposes a sentence but it is vacated by the appeals court, there is no sentence and never was one.
Let's put it in slightly different terms - if you were convicted of a felony but that conviction is overturned, are you a former felon? Of course not. You are not a felon and never were.
The sort of semantic games being played by the majority are bad for the law and bad for society. When judges manipulate the written word into the pretzel-like contortions used by the majority, the public loses faith in the institutions of our government.
Judge Newsom needs to explain his use of spyware..
ReplyDeletehttps://techcrunch.com/2024/07/11/mspy-spyware-millions-customers-data-breach/