[ 1 ] See , e . g ., United States v . Uriarte , 975 F . 3d 596 , 606 ( 2020 ) ( Barret , J ., dissenting ) (" As the majority sees it , a sentence ' has not been imposed ' as of the date of enactment if on that date the defendant is not subject to a legally binding sentence . The defendant might be in that position because he has never been sentenced ; he might be in that position because he is waiting to be resentenced .").
[ 2 ] Hewitt v . United States , 144 S . Ct . 2713 ( 2024 ). [ 3 ] Transcript of Oral Argument at 87 , Hewitt v . United States , 144 S . Ct . 2713 ( 2024 ).
[ 4 ] See , United States v . Uriarte , 975 F . 3d 596 , 603 ( 2020 ) ("[ To exclude pre-Act offenders facing plenary resentencing ] would be fundamentally at odds with the First Step Act ' s ameliorative nature ."); see also , United States v . Bethea , 841 Fed . Appx . 544 ( 2021 ); United States v . Mitchell , 38 F . 4th 382 ( 2022 ); United States v . Merrell , 37 F . 4th 571 ( 2022 ).
[ 5 ] See Deal v . United States , 508 U . S . 129 , 132 – 37 ( 1993 ); see also , United States v . Merrell , 37 F . 4th 571 , 574 ( 2022 ) (" The First Step Act … allows § 924 ( c )( 1 ) sentencing enhancements for a second or subsequent conviction only ' after a prior [§ 924 ( c )] conviction ... has become final ,' [ citations omitted ], and thus abrogates the Deal rule allowing enhancements based on convictions arising out of the same indictment and trial [.]").
[ 6 ] United States v . Duffey , 92 F . 4th 304 ( 2024 ); United States v . Jackson , 995 F . 3d 522 ( 2021 ). [ 7 ] Duffey , 92 F . 4th at 310 .
[ 8 ] The logic espoused by the 5th and 6th Circuits has its roots in – and is presumably strengthened by – the Uriarte dissent in the 7th Circuit case , authored by the now Justice Barrett . See , e . g ., Duffey , 92 F . 4th at 310 ( citing that dissent in noting that the phrase " has not been imposed " refers to action by the district court , not a defendant ' s status ).
[ 9 ] First Step Act § 403 ( b ), 132 Stat . at 5221-5222 .
[ 10 ] Uriarte , 975 F . 3d at 604 (" Had Congress intended the phrase ' a sentence ' to convey a very broad meaning , it could have used the word ' any ' as it did earlier in the same sentence [.]"; but see Duffey , 92 F . 4th at 311 (" If Congress meant for the First Step Act ' s retroactivity bar to apply only to valid sentences , it could easily have said so . Instead , § 403 ( b )' s use of " the indefinite article ' a ' is broad enough to refer to any sentence that that has been imposed for the offense , even one that was subsequently vacated .") ( citing Uriarte , 975 F . 3d at 608 ( Barrett , J ., dissenting )).
[ 11 ] Duffey , 92 F . 4th at 309 (" The Government maintained this view [ that the First Step Act should not apply to defendants ] during Duffey ' s and Ross ' s resentencings . However , the Government changed its position by the time of Hewitt ' s resentencing .").
[ 12 ] Uriarte , 975 F . 3d at 606-11 ( Barrett , J ., dissenting )). [ 13 ] Transcript of Oral Argument at 93 , Hewitt v . United States , 144 S . Ct . 2713 ( 2024 ).
[ 14 ] Id . at 87 (" I mean , isn ' t that how you learned your high school grammar , that you don ' t use the present-perfect tense for something that ' s wholly completed and in the past , with no continuing