July 21, 2025
Hewitt v. United States, 606 U.S. ____ (2025) (Jackson, J.)
Response by Kyle Singhal
Geo. Wash. L. Rev. On the Docket (Oct. Term 2024)
Slip Opinion | SCOTUSblog
Supreme Court Patches a Small but Apparent Hole in the First Step Act in Hewitt v. United States
Federal law does not treat violent crime lightly. In addition to whatever sentence a defendant might receive for committing a violent crime like robbery, a defendant faces an additional, consecutive sentence if a firearm is involved. That additional, consecutive sentence is subject to a mandatory minimum of ten years for discharging the weapon, seven years for brandishing it, or five years for possessing it, even if no one is harmed in the commission of the crime. 18 U.S.C. § 924(c)(1)(A). For a second or subsequent offense, the mandatory minimum is a whopping 25 years of imprisonment (again, on top of the sentence for the underlying crime). 18 U.S.C. § 924(c)(1)(C)(i). That’s longer than the average sentence for murder. Danielle Kaeble, Bureau of Just. Stats., Time Served in State Prison, 2016, at 1 (2018).
Prior to the First Step Act of 2018, however, the punishment was even harsher. Even a first-time offender could find himself facing multiple twenty-five-year mandatory minimum terms from a single prosecution. The Supreme Court had held in Deal v. United States that each and every count of conviction beyond a defendant’s first—even if all counts including the first were charged at the same time and in the same indictment—were subject to the enhanced mandatory minimums. 508 U.S. 129, 131–33 (1993). That meant that a first-time offender who carried (but did not brandish, let alone fire) a gun during a string of five robberies faced (1) punishment for the robberies themselves, (2) a five-year mandatory minimum for the first armed robbery, and (3) four additional, consecutive (or “stacked”) twenty-five-year mandatory minimums (one for each of the subsequent armed robberies), for a total punishment exceeding 105 years in federal prison. Id.
Regardless of one’s views on the efficacy of functional life sentences, this punishment scheme’s potential for unwarranted sentencing disparities is evident. After all, someone who committed a string of nonviolent (though armed) robberies in which no one was hurt faced a mandatory sentence of decades—while someone who committed a singular (even if more gruesome) robbery could receive a lighter sentence.
Congress Passes the First Step Act of 2018
Indeed, the punishment scheme lived up to its potential. After decades of hearing stories of hapless youth subjected to nonsensically long sentences (what difference could there be, for instance, between an eighty-year sentence and a 213-year sentence?), bipartisan support coalesced around Section 403 of the First Step Act. Section 403 reduced the mandatory minimum from twenty-five years to five years for subsequent offenses charged in the same proceeding as a defendant’s first offense by clarifying that the enhanced mandatory minimums only apply after the first conviction became final. Under the new regime, the hypothetical defendant above who would have faced a mandatory minimum of at least 105 years now instead faces a mandatory minimum of twenty-five years (five years for each of the five robberies) on top of the punishment for the robbery itself. That remains a life-altering sentence—but it is no longer a life-ending one.
Congress Anticipates and Resolves a Retroactivity Problem in Section 403 of the First Step Act
Ordinarily, when Congress makes changes to the punishment for a crime, those changes apply only to defendants who commit their crimes after the changes take effect. The general idea is that the law in effect at the time of the crime’s commission is what governs the statutory sentencing parameters. 1 U.S.C. § 109. Here, however, Congress wanted Section 403 to go to work right away, so that everyone sentenced after its enactment would be subject to the new law rather than the old law. To that end, Congress added the following language as Section 403(b):
This section, and the amendments made by this section, shall apply 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.
Pub. L. 115-391, § 403, 132 Stat. 5194, 5222 (2018). The intended result of Section 403(b) is obvious: If you committed a crime before the First Step Act took effect on December 21, 2018, but you had not yet been sentenced as of that date, then you were entitled to the benefit of the new law with its reduced minimums.
In Resolving One Problem, Congress Created Another
What Congress should have—but may not have—foreseen is that its language opened the door to a new problem. Specifically, Section 403(b) states that the reduced minimums apply “if a sentence for the offense has not been imposed as of [December 21, 2018].” Id. (emphasis added). The use of “has been” (rather than “had been” or, simply, “was”) creates the problem. It is clear that someone who committed a crime prior to December 21, 2018, and who was first sentenced after that date is someone whose sentence “has not been imposed” as of that date. But what if someone committed a crime prior to December 21, 2018, was sentenced prior to that date, and then had that sentence vacated for resentencing after that date? Given the usual presumption that a vacated sentence is void ab initio, Hewitt v. United States, 145 S. Ct. 2165, 2173–74 (2025) (citing United States v. Ayres, 76 U.S. (9 Wall.) 608, 610 (1870)), does that mean that such a sentence “has not been imposed” as of December 21, 2018—even though a (now-vacated) sentence was imposed prior to that date?
To visualize the problem with an example:
2009: A first-time offender is convicted for a series of five armed robberies.
2010: The defendant is sentenced to 130 years in prison, including twenty-five years for the substantive crimes, a five-year mandatory minimum for possessing a firearm in the “first” robbery, and a twenty-five-year mandatory minimum for possessing a firearm in each of the next four robberies.
December 21, 2018: The First Step Act takes effect.
2025: For reasons unrelated to Section 403 of the First Step Act, the defendant’s sentence is vacated by a court of appeals, and the matter is remanded to the district court for resentencing.
The question is: As of 2025, now that the defendant’s sentence has been vacated, is it fair to say that the defendant’s offenses are ones for which a sentence “has not been imposed as of December 21, 2018”?
No one would reasonably say that the defendant’s sentence “has been” imposed at all, given that it has been vacated. But does that mean that a sentence “has not been imposed,” thereby entitling the defendant to be resentenced under the First Step Act, even though the defendant’s original sentence was final before the Act took effect?
That is precisely the question that the Supreme Court took up—and answered affirmatively—in Hewitt v. United States.
The Supreme Court Patches the Hole, Applying Section 403’s Changes to All Defendants Sentenced or Resentenced After December 21, 2018
The petitioners in Hewitt were defendants who presented timelines roughly similar to the one depicted above: They were convicted in 2009 and sentenced long before the First Step Act was on the way. But after the enactment of the First Step Act, their sentences were vacated in light of other, unrelated rulings of the Supreme Court.
At their resentencing hearings, the government argued that because they had been sentenced as of December 21, 2018, Section 403 of the First Step Act did not apply to them. The district court agreed and sentenced them to 130 or more years of imprisonment. Id. at 2170 & n.3.
But by the time the Fifth Circuit considered their appeals, the government had changed positions. It now agreed with the petitioners that the First Step Act should apply, permitting resentencing with the five-year (rather than twenty-five-year) mandatory minimums on each count. But the Fifth Circuit nevertheless sided with the district court and affirmed the lengthy sentences. Id. at 2170–71 & n.3.
The Supreme Court granted certiorari, appointing an amicus to defend the judgment because the United States maintained its position that the petitioners were correct.
Writing for a five-Justice majority and reversing the lower courts, Justice Jackson rightly focused first on the language that Congress used. The key was that Congress chose not to say that Section 403 applied only to those whose sentences “had not been imposed” as of December 21, 2018; such use of the past-perfect tense would more clearly have indicated that anyone whose sentence had been imposed (even if later vacated) would be ineligible for Section 403’s relief. “Rather,” Justice Jackson wrote, “Congress employed the present-perfect tense—thereby requiring evaluation of whether ‘a sentence . . . has . . . been imposed’ upon the defendant” in the first place. Id. at 2171.
The majority opinion relied on contemporaneous examples of English usage to drive home the point that the present-perfect tense necessarily describes both past and present truth. One example was “a rule stating that athletes may call themselves Olympic champions if a gold medal ‘has been awarded’ to them.” Id. at 2172. The present-perfect phrase “has been awarded,” the opinion stated, applies only to someone who received and still has the medal. If someone has been stripped of the medal, then you might say that the person had been awarded a medal, but you could no longer say that the person has been awarded the medal. Id. at 2172–73. Similarly, then, a defendant whose sentence has been vacated is no longer a defendant whose sentence “has been imposed” at all. Id.
Justice Jackson buttressed the opinion with a discussion of common law principles of vacatur and with a claim that “Congress’s choice of the present-perfect tense was not accidental.” Id. at 2175. That claim, however, is thinly supported: Justice Jackson presents ample evidence that Congress sought to remedy the gross sentencing disparities caused by the mandatory, stacked twenty-five-year sentences—but that evidence itself does nothing to address the specific question in Hewitt, which is whether the Act applies to those whose sentences were previously final (and not eligible for modification under the Act at all) but who happened to be eligible for resentencing for some other reason. See id. at 2175–77. After all, if Congress wanted to make Section 403 retroactive to all defendants, it could have—but it chose not to. (Justice Jackson acknowledges later in the opinion that some parts of the First Step Act were made fully retroactive, for instance.) Id. at 2177.
Justice Alito penned the dissent, joined by Justices Thomas, Kavanaugh, and Barrett. The dissent picked up with precisely this last point: The statutory history showed that Congress intended Section 403 to apply to pending cases (i.e., those for whom sentences had not yet been imposed at the time it took effect). But “‘Pending Cases’ does not mean ‘All Cases,’ and Congress limited the retroactive reach of the amendment to defendants for whom ‘a sentence for the offense has not been imposed as of [the Act’s] date of enactment.’” Id. at 2179 (Alito, J., dissenting).
The dissent disagreed with the majority’s view of vacatur. Id. at 2179, 2184–86. But, like the majority, the dissent hastily claimed that Congress intended not to have Section 403 apply to defendants like petitioners. See id. at 2179, 2182–83, 2188.
Hewitt is interesting because a strict textualist reading of the present-perfect tense favors the majority’s outcome, whereas the evident purpose of Congress in adopting only partial retroactivity supports the dissent. Where both opinions stray is in concluding without support that Congress actually foresaw the problem that would arise from its use of “has been” rather than “had been.” And what is missing from the Court’s opinions is any indication that Congress made a deliberate choice to use “has” rather than “had.” For all we know, the drafters meant to say “had been” but poorly chose “has.” Yet the dissent writes that the majority’s “interpretation thus unspools the Act’s carefully wound retroactivity command to mean that any defendant whose sentence is vacated at any time and for any reason may claim the benefit of the Act’s reduced mandatory minimum.” Id. at 2179 (first emphasis added). Both the majority and the dissent could have reached their respective outcomes without maintaining the pretense that Congress’s poor choice of wording was deliberately chosen to resolve the issue in Hewitt—an issue that no evidence indicates Congress even foresaw.
The result, in sum, is that the Supreme Court patched a hole that Congress may not have noticed when the Act went to press. To some, that means the Court has done its duty. To others, that means the Court has shirked it. To a first-time offender serving a series of stacked mandatory twenty-five-year sentences, it means that any opportunity for resentencing in the future will bring the benefit of Section 403’s reduced minimums.
Kyle Singhal is a Professorial Lecturer in Law at The George Washington University Law School and is a partner of the Washington, DC law firm Hopwood & Singhal, PLLC.
Recommended Citation
Kyle Singhal, Supreme Court Patches a Small but Apparent Hole in the First Step Act in Hewitt v. United States, Geo. Wash. L. Rev. On the Docket (July 21, 2025), https://www.gwlr.org/supreme-court-patches-small-but-apparent-hole-in-the-first-step-act.
