These consolidated cases present an object lesson in statutory interpretation , the result of which may well determine whether Hewitt and Duffey spend the rest of their lives in prison . The stakes could not be higher for them , and for those similarly situated .
Did Congress intend to save them from that risk ? The Circuit Split
That precise question has been a matter of staunch disagreement among appellate courts . On one side of the coin , the U . S . Courts of Appeals for the Third , Fourth , Seventh and Ninth Circuits have taken a broad interpretation of when a sentence has not been imposed , citing for support the ameliorative nature of the act in reducing harsh sentencing guidelines .[ 4 ]
Indeed , as the U . S . Court of Appeals for the Ninth Circuit recognized , the FSA deliberately chose to overturn the long-standing practice of sentence-stacking explicitly condoned in the Supreme Court ' s 1993 decision in Deal v . U . S .[ 5 ]
On the other side of that coin , however , the U . S . Courts of Appeals for the Fifth and Sixth Circuits do not see the matter as quite so ambiguous , arguing that a straightforward reading of the statute precludes application of the FSA to defendants whose sentences have been vacated as they await resentencing .[ 6 ]
As the U . S . Court of Appeals for the Fifth Circuit reasoned in its 2024 U . S . v . Duffey decision , " whether a sentence has been ' imposed ' appears to hinge on a district court ' s action or inaction — not on a defendant ' s status ."[ 7 ]
Thus , it is the historical fact of the sentence ' s imposition that ultimately decides whether a defendant is able to claim relief under the FSA .[ 8 ]
Regardless of which side of the argument each court landed on , the statute ' s specific language and purpose served as the key considerations in each court ' s analysis .
With regard to the language of the statute , a great deal of ink has been spilled over the phrase " has not been imposed ." The interpretation of this phrase is crucial , as the FSA makes clear that it may apply retroactively to any offense that was committed before the date of enactment , but only " if a sentence for the offense has not been imposed as of such date of enactment ."[ 9 ]
The minority of circuits finding that the act does not apply to defendants whose sentences have been vacated after the FSA ' s enactment hold that this language is not ambiguous at all . To reach this conclusion , they emphasize that vacatur does not affect the historical event of the sentence ' s imposition .
Those arguing for a broad interpretation of the act , however , assert that the inclusion of the prepositional phrase " as of " requires a reading that views the defendant ' s sentencing status as an evolutionary process .
Both sides , however , agree that Congress could have made clearer the effect the act was meant to have on defendants like those in Hewitt .[ 10 ]