WHEN FINAL MEANS FINAL: AN OVERVIEW OF WHEN A CRIMINAL SENTENCE IS IMPOSED WITH THE FIRST STEP ACT

By: Dan Otsuki, Volume 104 Staff Member

Take a moment and consider you are watching a high-profile, maybe even celebrity criminal trial streaming online. Imagine further the jury, after months of listening to testimony and days of deliberating, comes back with a guilty verdict. We at home, riveted to our various screens, take a deep breath and relax, content that justice had been served and the matter was put to rest . . . but that sense of finality, a foundation of the United States’ criminal justice system, is not quite so cut-and-dry. Due to a Circuit split, a question that facially seems so simple is actually needlessly in debate: when does final mean final?

Before delving into the split itself, it bears mentioning the Act that makes this question relevant in the first place. The First Step Act (“FSA”) was passed on December 21, 2018.[1] It represented not only a rare example of contemporary, bi-partisan legislation but an overhaul of the criminal justice system in terms of things like reducing recidivism, confinement, corrections, sentencing, and general oversight, while providing good-behavior incentives to inmates in order to get them out of prison sooner.[2] While each of these subcategories and goals within the FSA could be spoken about at length, the issue at bar concerns only one specific portion of the FSA – sentencing. More specifically still, the FSA changed language in 21 U.S.C. § 841(b)(1)(A)(viii) regarding sentencing, and herein lies the catalyst for the newest decision on the when a sentence is final within the means of the FSA.[3]

I.  THE SPLIT

The split in question involves three Circuit Courts: on one side, the Third and Seventh Circuits, declaring that a sentence is imposed the moment the district court hands down its ruling,[4] and on the other, the Sixth Circuit, holding that a sentence is not final until it has been adjudicated on a possible appeal.[5] Although the Sixth Circuit’s ruling still holds weight, both within its jurisdiction specifically and persuasively in others, it bears keeping in mind the context in which this holding was reached.

A. U.S. v. Clark: Pre-FSA Sentencing

In Clark, the defendant appealed her sentence after being convicted of possessing LSD with intent to distribute.[6]Clark argued “she should be resentenced in accordance with the safety valve provision of 18 U.S.C. § 3553(f), which provide[d] an exception to the applicability of mandatory minimum sentences in certain cases.”[7] The Act in question, the Mandatory Minimum Sentencing Reform Act or the “safety valve statute,”[8] considered “shorter sentences for first time offenders who might otherwise be subject to mandatory minimum sentences,” and was adopted a month after Clark’s sentence had been imposed.[9] Because the relevant portion of the statute contemplated “all sentences imposed on or after” the enactment, the court was tasked with deciding when a sentence was final for the sake of the statute.[10] Ultimately, looking at the statute’s intent, the Sixth Circuit determined that the statute was meant to apply to cases pending appeal, such as Clark’s.[11] The court concluded that a sentence is not final until it has been adjudicated on appeal, remanding the case for determination of whether Clark should receive relief under it.[12]

If a statute is passed with the intent of being more lenient on certain classes of offenders, it seems ostensibly unfair to, in effect, punish individuals of said class whose crimes were committed a month too soon. This kind sentiment, however, has notable limitations more than two decades later, most notably, the safety valve statute is no longer the measuring stick for reduced sentencing. As first adjudicated by the Seventh Circuit, the FSA is now the standard by which such things are decided.

B. U.S. v. Pierson: Splitting Circuits Under New Law

In Pierson, the Seventh Circuit took a decidedly different approach to its sister court over twenty years prior. In Pierson, the defendant had been convicted of “possessing drugs with intent to distribute and two related firearm crimes. Because of Pierson’s prior criminal record, his mandatory sentence was life in prison.”[13] Among other things, Pierson sought the benefits of the FSA, which would have vacated his life sentence under the FSA’s new sentencing guidelines in exchange for twenty-five years.[14] The Seventh Circuit disagreed.[15]

Although the court noted that the FSA was approved while Pierson’s appeal was pending, the court pointed to FSA § 401(c) which noted that relevant amendments “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enactment.”[16] Based on this, the court declared that the FSA’s language intended for the date of the district court’s sentencing to serve as when a sentence was imposed.[17]

Despite Pierson pointing to Clark as a basis for why his sentence was not yet final, the court rejected his argument, noting that no other circuits had adopted the Sixth Circuit’s timeframe for “impose.”[18] In similar fashion, when the Third Circuit had the opportunity to choose which precedent it wished to adhere to, it opted to keep with the splitting Seventh Circuit, ruling that a sentence is imposed when done so by the district court, regardless of any appeal.[19]

C. U.S. v. Aviles: Keeping with the Split

Like Clark and Pierson, Aviles was charged with various drug-trafficking-related offenses, arguing on appeal that he should be resentenced in accordance with the FSA.[20] Similarly to Pierson, the FSA was enacted while Aviles was awaiting his appeal and the “crux of [his] argument [was] that a sentence is not ‘imposed’ until entry of final judgment by the highest court authorized to review it.”[21] The Third Circuit referenced both Pierson and Clark as the logical frameworks they could follow, describing how Pierson rejected Clark’s persuasive precedent in favor of a more pragmatic approach.[22] In agreeing with the Seventh Circuit, the court noted simply that imposition of “sentences is the business of district courts, while courts of appeals are tasked with reviewing them by either affirming or vacating them,” succinctly drawing a distinction between the roles of district and appellate courts.[23] As such, the Third Circuit ruled the FSA did not apply to Aviles.[24]

In keeping with the Seventh Circuit, the Third denotes a potential shift in thinking from the Sixth’s decision over twenty years earlier. While Clark was relevant enough to be cited by both Pierson and Aviles in their appeals, it seems decidedly likely that other Circuits faced with this question will follow in 2019’s theme of declaring a sentence final when the district court hands it down. Putting aside the mere fact of recency, future decisions could rely on a very basic fact in drawing their conclusions: the two statutes, leading to this split, are different, and therefore the two separate rules aren’t as diametrically opposed as one might think.

II. RECONCILING THE SPLIT: AN EASY LINE TO DRAW

Circuits are faced with a simple question of when a sentence is finally imposed. From a pure leniency standpoint, it makes a lot of sense to follow Clark’s line of reasoning, providing the greatest benefit to as many as possible and not wasting a person’s life because they committed a crime a little too early. On the other hand, pragmatically, the Third Circuit’s delineation of the responsibilities of a district court versus an appellate level court make facial sense, opting for an easy-to-follow rule rather than any emotional call to shave years off of a wrongdoer’s sentence. The answer, however, while neither legally nuanced nor elegant, might be far simpler than either the Seventh or Third Circuits make it.

While the issue remains, simply, when is a sentence imposed, the solution could be as easy as delineating between the two statues which led to this split. The “safety valve” statute had one rule applied to it, that of the Sixth Circuit, and the FSA now has a shiny new one courtesy of the Seventh and Third Circuits. While this is a blunt rationale, to say the least, it allows for reconciliation between the decisions without the need for tedious legislation over a basic-sounding issue. Courts should stick with the simplistic solution asserted by the Third Circuit that imposing “sentences is the business of district courts, while courts of appeals are tasked with reviewing them by either affirming or vacating them.”[25] If courts forgo such an easy rationale, either Supreme Court or legislative intervention appears necessary to remedy this seemingly needless Circuit split.

CONCLUSION

Both sides of the split have merits based on different criteria. The Sixth Circuit’s decision makes sense when looking at overall fairness and consideration of the lives of individuals swept up in the criminal justice system. However, the 2019 decisions draw a practical and sensible line based on what district versus appellate courts actually do. Neither is inherently incorrect, but for an issue that seems so fundamental to criminal justice—finality—it is a question which deserves an ironically final answer. By seeing the split as a product of two different statutes, courts can move beyond this needless uncertainty, spending their time and energy on the facts of the case rather than more tedious procedural quandaries.

[1] An Oversight of the First Step Act, Fed. Bureau of Prisons, https://www.bop.gov/inmates/fsa/overview.jsp[https://perma.cc/8WFV-TXDT]; see First Step Act of 2018, Pub. L No. 115-391, § 401, 132 Stat. 5194 (2018) [hereinafter “First Step Act”].

[2] An Oversight of the First Step Act, supra note 1.

[3]  First Step Act; 21 U.S.C. § 841(b)(1)(A)(viii) (2018) (changing the sentencing requirement from a mandatory life sentence to a “term of imprisonment of not less than 25 years”).

[4] See U.S. v. Aviles, 938 F.3d 503, 510 (3d Cir. 2019) (“Imposing sentences is the business of district courts, while courts of appeals are tasked with reviewing them by either affirming or vacating them. . . . Congress’s use of the word imposed thus clearly excludes cases in which a sentencing order has been entered by a district court from the reach of the amendments made by the First Step Act.”); U.S. v. Pierson, 925 F.3d 913, 927 (7th Cir. 2019) (“Sentence was imposed here within the meaning of § 401(c) when the district court sentenced the defendant, regardless of whether he appealed a sentence that was consistent with applicable law at that time it was imposed.”).

[5] See U.S. v. Clark, 110 F.3d 15, 17 (6th Cir. 1997) (“A case is not yet final when it is pending on appeal.”).

[6] Id. at 16.

[7] Id. at 16–17.

[8] See 18 U.S.C. § 3553(f) (2018). This statute is still good law today, despite subparagraph (b)(1) being found unconstitutional.

[9] Clark, 110 F.3d at 17.

[10] Id.

[11] Id. (noting that “[t]he statute’s purpose statement . . . suggests that it should receive broad application and should apply to cases pending on appeal when the statute was enacted,” and that it was enacted to provide a means for “non-violent, low-level drug offenders” to mitigate their sentences).

[12] Id. at 17–18.

[13] U.S. v. Pierson, 925 F.3d 913, 917 (7th Cir. 2019).

[14] Id. at 917, 927 (describing Pierson’s argument as coming under 21 U.S.C. § 841(b)(1)(A)(viii) which changed the requirement of a mandatory life sentence to a mandatory 25-year sentence).

[15] Id. at 927.

[16] Id.; see also First Step Act § 401(c).

[17] Pierson, 925 F.3d at 928 (“In the First Step Act, Congress chose language that points clearly toward that same result: the date of sentencing in the district court controls application of the new, more lenient terms.”).

[18] Id.

[19] U.S. v. Aviles, 938 F.3d 503, 510 (3d Cir. 2019).

[20] Id. at 505, 508.

[21] Id. at 508, 510.

[22] Id. at 510.

[23] Id.

[24] Id.

[25] Id.