Hewitt v. United States

(Slip Opinion)              OCTOBER TERM, 2024                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                     HEWITT v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE FIFTH CIRCUIT

   No. 23–1002. Argued January 13, 2025—Decided June 26, 2025*


Before the First Step Act was enacted in 2018, federal judges were required to sentence first-time offenders convicted of violating 

(c)—a law that criminalizes possessing a firearm while
  committing other crimes—to “stacked” 25-year periods of incarceration. The First Step Act eliminated this harsh mandatory minimum
  penalty. Section 403(b) of the Act also made its more lenient penalties
  partially retroactive. Specifically, if a sentence “has not been imposed”
  upon an eligible §924(c) offender as of the date of the First Step Act’s
  enactment, the Act applies. The question presented here concerns an
  edge case: What penalties apply when a §924(c) offender had been sentenced as of the Act’s enactment, but that sentence was subsequently
  vacated, such that the offender must face a post-Act resentencing?
     In 2009, petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross
  were convicted of multiple counts of bank robbery and conspiracy to
  commit bank robbery, along with corresponding §924(c) offenses for
  use of a firearm during a crime of violence. Each petitioner received a
  mandatory 5-year sentence for his first §924(c) count of conviction and,
  despite being first-time offenders, each received 25-year mandatory
  sentences on every §924(c) count beyond his first. Thus, each petitioner’s sentence exceeded 325 years. Petitioners successfully challenged some of their convictions on direct appeal, and the Fifth Circuit
  vacated petitioners’ sentences. In 2012, the District Court resentenced
  each petitioner to between 285 and 305 years on the counts that remained.
——————
   *Together with No. 23–1150, Duffey et al. v. United States, also on certiorari to the same court.
2                      HEWITT v. UNITED STATES

                                  Syllabus

       In 2019, the Court held that the “crime of violence” definition the
    Government routinely used to support some §924(c) convictions was
    unconstitutionally vague. See United States v. Davis, 

,
    470. Because that holding potentially affected some of petitioners’ remaining convictions, the Fifth Circuit granted petitioners authorization to file a second or successive postconviction motion. The District
    Court then vacated the impacted §924(c) convictions, as well as petitioners’ sentences. When the District Court held resentencings for the
    remaining convictions, petitioners argued that the First Step Act’s 5-
    year—not 25-year—mandatory minimum penalties applied. Petitioners argued they were entitled to retroactive application of the Act’s
    more lenient penalties because a vacated prior sentence is not a sentence that “has . . . been imposed” for purposes of §403(b). The District
    Court disagreed and resentenced petitioners under the pre-Act sentencing scheme, giving them stacked 25-year mandatory minimums
    for each §924(c) count of conviction beyond their first. Petitioners thus
    each received sentences of 130 years or more.
       On appeal, petitioners and the Government agreed that the First
    Step Act should have applied at petitioners’ resentencings. The Fifth
    Circuit denied their joint request for vacatur. In that court’s view,
    §403(b) applies only “to defendants for whom ‘a sentence . . . ha[d] not
    been imposed’ as of the enactment date.” 

, 310. Because
    each petitioner had been sentenced (twice) prior to the Act’s enactment, the panel concluded that petitioners were not eligible for the
    First Step Act’s more lenient mandatory minimums.
Held: The judgment is reversed, and the case is remanded. Pp. 6–12.

, reversed and remanded.
     JUSTICE JACKSON delivered the opinion of the Court with respect to
  Parts I, II, and III, concluding that under §403(b) of the First Step Act,
  a sentence “has . . . been imposed” for purposes of that provision if, and
  only if, the sentence is extant—i.e., has not been vacated. Thus, the
  Act’s more lenient penalties apply to defendants whose previous
  §924(c) sentences have been vacated and who need to be resentenced
  following the Act’s enactment. Pp. 6–12.
     (a) The text of §403(b) and the nature of vacatur support this conclusion. Congress employed the present-perfect tense, requiring evaluation of whether “a sentence . . . has . . . been imposed” upon the defendant, rather than the past-perfect tense that would exclude anyone
  upon whom a sentence “had” been imposed. The present-perfect tense
  can refer to “an act, state, or condition that is now completed” or “a
  past action that comes up to and touches the present” and thus conveys
  that the event in question continues to be true or valid. The Chicago
  Manual of Style §5.132, p. 268. When used in either sense, the pre-
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                                Syllabus

  sent-perfect tense addresses whether something has continuing relevance to the present, not merely whether it occurred as a historical
  fact. If an event is merely a relic of history because it was voided by a
  subsequent action, the past-perfect (not the present-perfect) tense is
  usually the more appropriate verb choice. The fact that adjacent provisions of §403 contain past-tense verbs only strengthens the conclusion that §403(b)’s use of the present-perfect tense is meaningful.
  Pp. 6–10.
      (b) Background principles regarding the legal effect of vacatur confirm that a sentence has been imposed for §403(b) purposes only so
  long as it remains valid. When interpreting statutes, the Court recognizes that Congress legislates against the backdrop of certain unexpressed presumptions. One such presumption is that vacated court
  orders are void ab initio and thus lack any prospective legal effect. A
  criminal defendant whose conviction has been vacated, for example, is
  to be treated going forward as though he were never convicted. By
  operation of legal fiction, the law acts as though the previous conviction never occurred. Section 403(b) reflects this commonsense understanding of background vacatur principles. Just as defendants with
  vacated prior felony convictions are not precluded from possessing
  weapons under the federal felon-in-possession ban, §403(b) retroactivity does not exclude from its scope those whose prior sentences were
  vacated. By authorizing retroactive application of the First Step Act’s
  more lenient penalties on any eligible offender upon whom “a sentence
  . . . has not been imposed,” the text of §403(b) indicates that only past
  sentences with continued validity preclude application of the Act’s new
  penalties. Pp. 10–12.

   JACKSON, J., delivered the opinion of the Court with respect to Parts I,
II, and III, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined, and an opinion with respect to Parts IV and V, in which
SOTOMAYOR and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion,
in which THOMAS, KAVANAUGH, and BARRETT, JJ., joined.
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                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     United States Reports. Readers are requested to notify the Reporter of
     Decisions, Supreme Court of the United States, Washington, D. C. 20543,
     [email protected], of any typographical or other formal errors.


SUPREME COURT OF THE UNITED STATES
                TONY R. HEWITT, PETITIONER
23–1002                     v.
                      UNITED STATES

   COREY DEYON DUFFEY, ET AL., PETITIONERS
23–1150             v.
              UNITED STATES
  ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED
    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
         Nos. 23–1002 and 23–1150. Decided June 26, 2025

  JUSTICE JACKSON delivered the opinion of the Court, except as to Parts IV and V.*
  Before the First Step Act was enacted in 2018, federal
judges were required to sentence certain first-time offenders convicted of violating 

(c)—a law that
criminalizes the possession of a firearm while committing
other crimes—to “stacked” 25-year periods of incarceration.
The First Step Act, 

, eliminated this harsh
mandatory minimum penalty. Congress also made the
Act’s more lenient penalties partially retroactive. Section
403(b) specifies that the Act applies if a sentence “has not
been imposed” upon an eligible §924(c) offender as of the
date of the First Step Act’s enactment. Id., at 5222.
  The question presented here concerns an edge case: What
penalties apply when a §924(c) offender had been sentenced
as of the Act’s enactment, but that sentence was subsequently vacated, such that the offender must face a post-
——————
   *THE CHIEF JUSTICE and JUSTICE GORSUCH join all but Parts IV and V
of this opinion.
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                        Opinion of the Court

Act resentencing? We hold that, under that circumstance,
a sentence “has not been imposed” for purposes of §403(b).
Thus, the First Step Act’s more lenient penalties apply.
                               I
   Title 

(c) criminalizes the use or possession of a firearm during and in relation to a crime of violence or drug-trafficking offense. The statute prescribes a
5-year mandatory minimum penalty for any first-time offense, which must run consecutively to any other term of
imprisonment. §§924(c)(1)(A)(i), (c)(1)(D)(ii). Before the
First Step Act, §924(c) also contained a recidivism enhancement that required imposition of an additional 25 years of
imprisonment (on top of the 5-year mandatory minimum)
for any “second or subsequent conviction under this subsection.” §924(c)(1)(C)(i) (2006 ed.).
   In Deal v. United States, 

 (1993), this Court
interpreted that recidivism-related language to require an
enhanced penalty for each and every §924(c) count of conviction beyond a defendant’s first—even if those convictions
were part of the same criminal prosecution. Id., at 132–
137. As a result, a first-time offender convicted of two
§924(c) counts would receive a mandatory 25-year sentence
on the second count, “stacked” upon (i.e., running consecutively to) the first count’s mandatory 5-year sentence, for a
total of 30 years of imprisonment.1 And each additional
§924(c) count would add another 25 years to that defendant’s total term of incarceration. See id., at 131–132. Under this “stacking” interpretation of §924(c)’s recidivism enhancement, sentences for §924(c) offenses ballooned rapidly
to span decades or even centuries.

——————
  1 When this Court decided Deal in 1993, the enhanced mandatory min-

imum penalty under §924(c) was 20 years. See 

(c) (1988
ed.). Congress increased the mandatory minimum to 25 years in 1998.
See §924(c) (1994 ed., Supp. IV); 

.
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                      Opinion of the Court

  On December 21, 2018, a supermajority of Congress enacted the First Step Act, a landmark piece of legislation
that changed the federal criminal-sentencing system in numerous respects. See 

. Among other things,
§403(a) of the First Step Act “clarif[ied]” that district court
judges are not required to impose stacked 25-year sentences
when sentencing first-time §924(c) offenders. Id., at 5221–
5222 (capitalization deleted). Abrogating this Court’s decision in Deal, the statute established instead that, for first-time offenders, 5-year mandatory minimums apply to each
count of conviction.
  The First Step Act also addressed the potential for retroactive application of this penalty reduction, by specifically
identifying the §924(c) offenders to whom the Act applied.
Ordinarily, because judges impose sentences based on the
statutory penalties that exist at the time defendants commit their offenses, 

, statutory changes to federal penalties only benefit future offenders. But Congress
altered this default no-retroactivity rule in the Act itself.
Section 403(b)—titled “APPLICABILITY TO PENDING
CASES”—made §403(a)’s reduced penalties applicable to
certain existing §924(c) offenders, as follows:
    “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.” §403(b), 

.
                              II
  In 2009, petitioners Tony Hewitt, Corey Duffey, and Jarvis Ross were convicted of multiple counts of bank robbery
and conspiracy to commit bank robbery, along with corresponding §924(c) offenses for use of a firearm during a crime
of violence. Each petitioner received a mandatory 5-year
sentence as to their first §924(c) count of conviction. And,
despite being first-time offenders, each received 25-year
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                          Opinion of the Court

mandatory sentences on every §924(c) count beyond their
first. Thus, in total, each petitioner’s sentence exceeded 325
years. Roughly 25 of those years were due to the robbery
offenses themselves, while the rest were attributable to
stacked §924(c) counts.
   Petitioners successfully challenged some of their convictions on direct appeal, and the Fifth Circuit accordingly vacated petitioners’ sentences.2 In 2012, the District Court
resentenced each petitioner to between 285 and 305 years
on the counts that remained—sentences that the Fifth Circuit affirmed on direct review. Petitioners also filed postconviction motions under 

, which were
each denied.
   After Congress passed the First Step Act in 2018, this
Court held that the “crime of violence” definition the Government routinely used to support some §924(c) convictions
was unconstitutionally vague. See United States v. Davis,

, 470 (2019). Because that holding potentially
affected some of petitioners’ remaining convictions, the
Fifth Circuit granted petitioners authorization to file a second or successive postconviction motion under 

. The District Court then vacated the impacted
§924(c) convictions, as well as petitioners’ sentences.
   When the District Court held resentencings for the remaining convictions, petitioners argued that the First Step
Act’s 5-year—not 25-year—mandatory minimum penalties
applied. Petitioners argued that they were entitled to retroactive application of the First Step Act’s more lenient
penalties because a vacated prior sentence is not a sentence
that “has . . . been imposed” for purposes of §403(b).3 The
——————
  2 Petitioners were initially convicted of attempted bank robbery, too.

Those convictions—along with the corresponding §924(c) counts—were
vacated following petitioners’ successful challenges on direct appeal. See
United States v. Duffey, 

, 444–445 (CA5 2012).
  3 During Duffey’s and Ross’s resentencings before the District Court,

the Government maintained that petitioners were ineligible for First
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                          Opinion of the Court

District Court disagreed and resentenced petitioners under
the pre-Act sentencing scheme, giving them stacked 25-
year mandatory minimum sentences for each §924(c) count
of conviction beyond their first. Petitioners thus each received sentences of 130 years or more—105 years of which
were attributable to stacked §924(c) penalties.
   On appeal, petitioners and the Government agreed that
the First Step Act should have applied at petitioners’ resentencings. The parties thus jointly requested vacatur of petitioners’ sentences, which the Fifth Circuit denied. 

, 310 (2024) (case below). In that court’s view,
§403(b) applies only “to defendants for whom ‘a sentence . . .
ha[d] not been imposed’ as of the enactment date.” Ibid.
(alteration in original). Because each petitioner had been
sentenced (twice) prior to the Act’s enactment, the panel
concluded that petitioners were not eligible for the First
Step Act’s more lenient mandatory minimums.
   We granted certiorari to decide whether §403(b) of the
First Step Act confers the benefit of the Act’s more lenient
penalties to defendants facing post-Act resentencing following vacatur of their pre-Act sentence. 

 (2024).4
Because the United States agrees with petitioners on the
——————
Step Act relief. But, by the time of Hewitt’s resentencing, the Government had changed its position; it supported Hewitt’s request for resentencing under the Act.
   4 The Courts of Appeals have divided over whether offenders who were

sentenced pre-Act, but whose sentences were later vacated, are eligible
to receive First Step Act benefits at their post-Act resentencing. Compare United States v. Merrell, 

, 577–578 (CA9 2022) (holding that, under §403(b), such an offender benefits from the Act at resentencing), and United States v. Mitchell, 

, 386–389 (CA3
2022) (same), with United States v. Jackson, 

, 525–526
(CA6 2021) (holding that such an offender does not benefit from the Act
at resentencing, if the prior sentence was vacated after the Act’s enactment); see also United States v. Uriarte, 

, 601–602, and n. 3
(CA7 2020) (en banc) (holding that such an offender benefits from the Act
if his sentence was vacated prior to the Act’s enactment date, but reserving judgment as to postenactment vacatur).
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                      Opinion of the Court

merits of their appeals, the Court appointed Michael H.
McGinley as amicus curiae to defend the judgment below.

 (2024). He has ably discharged his responsibilities.
                              III
  The Fifth Circuit held, and amicus and the dissent contend, that §403(b) excludes any defendant who was sentenced prior to the enactment date of the First Step Act—
even if his sentence was later vacated. That is so, in their
view, because the Act applies only “if a sentence for the offense has not been imposed as of ” the Act’s enactment date,
and a sentence “has . . . been imposed” upon that defendant
as a matter of historical fact. 

 (emphasis
added). But based on the text of §403(b) and the nature of
vacatur, we conclude that a sentence has been imposed for
purposes of that provision if, and only if, the sentence is extant—i.e., has not been vacated.
                              A
   To understand why this is so, focus first on the language
Congress used. Most notably, the operative phrase is not
written in the past-perfect tense, excluding anyone upon
whom a sentence “had” been imposed. Rather, Congress
employed the present-perfect tense—thereby requiring
evaluation of whether “a sentence . . . has . . . been imposed”
upon the defendant. §403(b), 

 (emphasis
added). In this context, that distinction makes a difference.
See United States v. Wilson, 

 (1992)
(“Congress’ use of a verb tense is significant in construing
statutes”).
   The present-perfect tense can refer to either (1) “an act,
state, or condition that is now completed” or (2) “a past action that comes up to and touches the present.” The Chicago
Manual of Style §5.132, p. 268 (17th ed. 2017) (emphasis
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                           Opinion of the Court

added). But when used in either sense, the tense simultaneously “involves reference to both past and present.” R.
Huddleston & G. Pullum, The Cambridge Grammar of the
English Language 143 (2002). That is, while “the primary
focus is on the present,” the past maintains “ ‘current relevance.’ ” 

 (confirming that the present-perfect tense addresses “a time-span beginning in the past and extending
up to now”).5 Thus, one might employ the present-perfect
tense to describe situations “involv[ing] a specific change of
state” that produces a “continuing result.” 

 (boldface deleted).
  Here is an example. Suppose the U. S. Olympic Committee enacted a rule stating that athletes may call themselves
Olympic champions if a gold medal “has been awarded” to
them. Pursuant to that rule, a U. S. sprinter who took first
place in the 2016 Summer Olympics’ 100-meter finals could
validly proclaim—today—that she is “an Olympic champion.” The existence of her win as a historical event triggers
the rule’s proper application, because it gives rise to the inference that the athlete remains an Olympic gold medalist
at present, thereby justifying her continued use of the
“Olympic champion” title. See 

 (explaining that the relevant “connection with the present” here would be “that the
resultant state still obtains now”).
  But now imagine that the Olympic Committee stripped
this sprinter of her medal after discovering that she used
——————
   5 A primary flaw of the dissent’s textual argument is its failure to ap-

preciate that, under either meaning of the present perfect, the event in
question must relate to now. In other words, while the dissent accurately
observes that the present-perfect tense can be used in one of two ways,
see post, at 4 (opinion of ALITO, J.), it ignores that neither refers to circumstances that are wholly in the past. What makes this the present-perfect tense is that, in each of its manifestations, there exists a connection to the present. See Huddleston, Cambridge Grammar of the English
Language, at 143 (confirming that references “to times wholly before
now”—when the present “is explicitly or implicitly excluded”—are
largely “incompatible with the present perfect”).
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                          Opinion of the Court

performance-enhancing drugs during the competition. Can
that athlete, under the rule, still call herself an Olympic
champion? The answer is no. Yes, she had been awarded
such a medal, but it was revoked; the fact that she stood on
the podium and was declared the winner in 2016 is inapposite for purposes of establishing whether she qualifies for
Olympic-champion bragging rights under the rule today.6
   When used in this way, the present-perfect tense conveys
to a listener that the event in question continues to be true
or valid. The dissent counters that, for purposes of the First
Step Act, the relevant moment of analysis should not be the
present, but rather the statute’s date of enactment. See
post, at 4–5. But that reframing is inconsistent with normal understandings of the present-perfect tense, which by
definition focuses on the present.7 Today, if an event is
merely a relic of history because it was voided by a subsequent action, the past-perfect (not the present-perfect)
tense would usually be the more appropriate verb choice.
See B. Garner, Modern English Usage 1082 (5th ed. 2022)

——————
   6 The dissent does not dispute that a sprinter who is divested of her

gold medal no longer qualifies as an “Olympic champion” under the hypothetical rule. Nor does the dissent contest that, if the Committee
wanted such a disqualified sprinter to be able to still claim the title, it
could phrase the rule in the past-perfect tense to accomplish that result
(i.e., bestowing the honorific if a gold medal “had been awarded” to the
athlete). The dissent’s primary response to this hypothetical is, instead,
to zero in on “[t]he obvious purpose of the hypothetical rule” and to explain that “the meaning of language is heavily dependent on context.”
Post, at 10, n. 3. Part IV of this opinion fully addresses the context of
§403(b)’s language and Congress’s primary objectives for enacting that
provision—both of which support the Court’s conclusion in this case.
   7 And, notably, there is a relevant connection to the present in the op-

eration of §403(b) despite that statute’s express reference to the date of
the Act’s enactment: the current occasion of the sentencing of the defendant in question. Sentencing courts read statutes at the moment of their
application—which, here, would be the moment of resentencing, not the
moment of enactment. From that proper vantage point, petitioners were
not subject to a sentence, as any previous sentence had been vacated.
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                      Opinion of the Court

(explaining that the past-perfect tense “represents an action as completed at some definite time in the past—that is,
before some other past time referred to”); Chicago Manual
of Style §5.133, at 268 (confirming that the past perfect “refers to an act, state, or condition that was completed before
another specified or implicit past time or past action”). Our
disqualified sprinter could thus still boast of her Olympic-champion status if the rule were, instead, that any athlete
who “had been awarded” a gold medal was entitled to use
that honorific.
    The fact that adjacent provisions of §403 contain past-tense verbs only strengthens the conclusion that §403(b)’s
use of the present-perfect tense is meaningful. Cf. Barrett
v. United States, 

 (1976) (emphasizing
when Congress “used the present perfect tense . . . in contrast to its use of the present tense” elsewhere in the statute). Section 404(c), for example, utilizes the simple past
tense to address a defendant’s prior sentencing. See 

 (“No court shall entertain a motion made under
this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with”
the relevant amendments (emphasis added)). The past
tense also features earlier in §403(b) itself. See ibid. (covering “any offense that was committed before the date of
enactment of [the] Act” (emphasis added)). But the verb
tense at issue here (“has been”) is conspicuously different—
making only clearer that a past sentence must have a relevant connection to the present for purposes of the retroactivity provision.
    Indeed, amicus and the dissent’s historical-fact reading
of §403(b) calls so naturally for the past-perfect tense that
jurists who share this view often employ that tense by default. The Fifth Circuit below, for instance, stated that “the
First Step Act applies to defendants for whom ‘a sentence
. . . ha[d] not been imposed’ as of the enactment date.” 92
F. 4th, at 310 (alteration in original). Other courts have
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                       Opinion of the Court

construed §403(b) similarly. See, e.g., United States v.
Jackson, 

, 525 (CA6 2021) (noting that “as of
December 21, 2018, a sentence had been imposed” upon the
defendant, even though it was later vacated). Congress of
course “could have phrased its requirement in language
that looked to the past . . . , but it did not choose this readily
available option.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 

 (1987). The
natural inference, then, is that Congress meant what it
said, and, thus, that §403(b) covers only past sentences with
continued legal validity, not those that have been vacated.
                                B
   Background principles regarding the legal effect of vacatur confirm that a sentence has been imposed for §403(b)
purposes only so long as it remains valid. When interpreting statutes, we “recogniz[e] that ‘Congress legislates
against the backdrop,’ of certain unexpressed presumptions.” Bond v. United States, 

 (2014)
(quoting EEOC v. Arabian American Oil Co., 

 (1991)). One such presumption is that vacated court
orders are void ab initio and thus lack any prospective legal
effect. See United States v. Ayres, 

 (1870)
(“[V]acating the former judgment . . . render[s] it null and
void, and the parties are left in the same situation as if no
trial had ever taken place in the cause”). By operation of
legal fiction, the law acts as though the vacated order never
occurred.
   A criminal defendant whose judgment of conviction has
been vacated, for example, is to be treated going forward as
though he were never convicted. See Fiswick v. United
States, 

 (1946) (confirming that one whose
conviction is vacated “stand[s] in the position of any [person] who has been accused of a crime but not yet shown to
have committed it”). Thus, if Congress were to pass a stimulus provision that gives checks to any small-business
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                           Opinion of the Court

owner who “has not been convicted of fraud,” an owner
would not be rendered ineligible on the basis of a fraud conviction that was overturned on appeal. While the owner
had been convicted of fraud, that judgment was invalidated
and therefore became legally inoperable. In other words,
that vacated conviction is subsequently treated as no conviction at all. See North Carolina v. Pearce, 

 (1969) (verifying that vacatur causes a conviction to be
“wholly nullified and the slate wiped clean”).8
  Section 403(b) reflects this “common-sense” understanding of background vacatur principles. Lewis v. United
States, 

 (1980). Just as defendants
with vacated prior felony convictions are not precluded from
possessing weapons under the federal felon-in-possession
ban, §403(b) retroactivity does not exclude from its ambit
those whose prior sentences have been vacated. See ibid.;

(g)(1); see also Pepper v. United States, 

 (2011) (explaining that vacatur of a criminal
sentence “wipe[s] the slate clean”).
  By authorizing retroactive application of the First Step
——————
  8 The dissent erroneously suggests that, under our precedents, a va-

cated sentence continues to exist as a historical fact and thus retains
prospective legal effect. See post, at 12–14. But the cases it cites do not
support that contention. In Lewis v. United States, 

 (1980),
for example, we considered whether the invalidity of one’s predicate felony conviction precludes conviction as a felon in possession of a weapon
under federal law. 

. We concluded the federal conviction could
stand when the defendant’s prior felony conviction had “never been overturned”—i.e., vacated—at the time he possessed the weapon. 

.
But we dismissed as “extreme” arguments suggesting that a vacated conviction could have such prospective legal effect. 

 (confirming the “common-sense” notion that “a disability based upon one’s status
as a convicted felon” ceases as a matter of law as soon as “the conviction
upon which that status depends has been vacated”). Bravo-Fernandez v.
United States, 

 (2016), is similarly unhelpful. That case concerned issue preclusion and jury findings and does not stand for the proposition that a vacated order itself retains continuing legal effect in the
relevant sense.
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                         Opinion of JACKSON, J.

Act’s more lenient penalties on any eligible offender upon
whom “a sentence . . . has not been imposed,” the text of
§403(b) indicates that only past sentences with continued
validity preclude application of the Act’s new penalties. A
judge would thus correctly conclude at resentencing that, if
an offender’s past sentence has been vacated, a sentence
“has not been imposed” upon that offender for purposes of
the First Step Act; hence, the court can impose a new sentence today.
                             IV
                              A
  The context and enactment history of the First Step Act
and §403(b) further demonstrate that Congress’s choice of
the present-perfect tense was not accidental. Rather, Congress was reacting to sustained criticism of the prior sentencing scheme, and with §403(b), it intended to execute a
clean break from the controversial and heavily contested
“stacking” practice.
  Sentencing judges had been among the harshest critics.
Before the First Step Act was enacted, more than one veteran District Court Judge decried how the “stacking” punishment for first-time §924(c) offenders was “grossly disproportionate” and “shockingly harsh given the nature” of the
offenses and a defendant’s “lack of criminal history.”
United States v. Washington, 

(MD Ala. 2004) (lamenting the requirement of a 40-year
term of imprisonment for a 22-year-old first-time offender,
and remarking that it was “the worst and most unconscionable sentence [the judge] ha[d] given in his 23 years on the
federal bench”).9 Judges on the Federal Courts of Appeals
——————
  9 See also, e.g., United States v. Holloway, 

(EDNY 2014) (noting that §924(c) stacking “produce[d] sentences that
would be laughable if only there weren’t real people on the receiving end
of them”); United States v. Angelos, 

, 1244–1245,
1248 (Utah 2004) (assailing being required to give a 24-year-old who had
                     Cite as: 

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                         Opinion of JACKSON, J.

also “join[ed] in the litany of criticisms directed towards”
§924(c)’s penalty regime for requiring the imposition of sentences that were “ ‘out of this world.’ ” United States v.
Hunter, 

, 746–747 (CA8 2014) (Bright, J., concurring); see also United States v. Hungerford, 

, 1118–1119 (CA9 2006) (Reinhardt, J., concurring in
judgment) (deeming “irrational, inhumane, and absurd” the
mandatory 159-year sentence imposed upon “a 52 year-old
mentally disturbed woman with no prior criminal record”
who had otherwise “led a spotless, law-abiding existence”);
United States v. Smith, 

 (CA10 2014)
(Gorsuch, J.) (observing that it was “no fanciful possibility”
that §924(c) stacking would lead to “prison term[s] of many
decades” that were “certain to outlast the defendant’s life
and the lives of every person now walking the planet”).
  Meanwhile, other institutional stakeholders raised similarly pointed objections to Deal’s stacking system. In its
annual report to Congress, the United States Sentencing
Commission criticized how §924(c) stacking had “result[ed]
in excessively severe and unjust sentences,” particularly in
cases in which “the offense did not involve any physical
harm or threat of physical harm to a person.” U. S. Sentencing Commission, Report to the Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System
359 (Oct. 2011). The United States Judicial Conference expressed similar concerns.10

——————
possessed weapons while dealing small amounts of marijuana “more
than doubl[e]” the sentence recommended for crimes resulting in “actual
violence to victims,” such as “hijack[ing]” an airplane, “detonat[ing] a
bomb in a public place,” or committing “rap[e]” or “second-degree
murde[r]”).
   10 See, e.g., Hearing before the Over-Criminalization Task Force of

2014 of the House Committee on the Judiciary, 113th Cong., 2d Sess., 41
(2014) (testimony of the Hon. Irene Keeley, U. S. District Judge, Judicial
Conference of the U. S.) (explaining that §924(c) stacking produced “particularly egregious” sentences for first-time offenders that ran “contrary
14                   HEWITT v. UNITED STATES

                         Opinion of JACKSON, J.

   The problem, as all seemed to recognize, was not that federal law permitted judges to impose lengthy sentences with
respect to first-time §924(c) offenders—it was that the statute, as Deal had interpreted it, required it. District judges
could not adhere to the statutory command that they give
sentences that are “sufficient, but not greater than necessary, to comply with the purposes” of punishment, 

(a), if they were also required to sentence
first-time offenders to §924(c)’s unduly harsh mandatory
minimum penalties. Additionally problematic was the fact
that, while federal law requires sentencing judges to “avoid
unwarranted sentence disparities among defendants,”
§3553(a)(6), the variation among prosecutors’ charging
practices meant that §924(c) stacking was a reality for only
some first-time offenders.11
   With sentencing judges routinely imposing what
amounted to mandatory life sentences on first-time §924(c)
offenders, in 2018, Congress eventually heeded the public
——————
to the interests of justice” and “undermine[d] confidence” in its administration).
   11 The policies of U. S. Attorney’s Offices diverged as to when—or

whether—they would bring multiple §924(c) counts, a decision over
which judges lack any control. See id., at 45 (testimony of the Hon. Patti
Saris, Chair, U. S. Sentencing Commission). This produced disparate
sentencing outcomes for similarly situated offenders across judicial districts. See U. S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 361–
362 (Oct. 2011) (attributing the “geographic concentration” associated
with §924(c) sentencing “to inconsistencies in the charging of multiple
violations of section 924(c)”); see also In re Hernandez, 

 (CA11 2017) (Martin, J., concurring in result) (finding “troubling”
that the defendant “might never have received this [stacked] sentence if
he had been sentenced in another part of the country”). In one case in
which prosecutors stacked additional §924(c) counts after the defendant
refused a plea offer, the District Judge specifically lamented the “risk of
massive sentencing disparity between identically-situated offenders
within the federal system,” because other U. S. Attorney’s Offices might
not have proceeded in that same fashion. United States v. Angelos, 

, 1253–1254 (Utah 2004).
                      Cite as: 

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                         Opinion of JACKSON, J.

outcry. An “extraordinary political coalition” formed, as
members of Congress worked together to develop “a bipartisan sentencing and prison reform bill” to address §924(c)
stacking. 164 Cong. Rec. S7645 (Dec. 17, 2018) (statement
of Sen. Durbin); see also Brief for Sen. Richard J. Durbin
et al. as Amici Curiae 5–8 (Senators Brief ). The First Step
Act was the much-anticipated, much-heralded fruit of their
labor—and one that many in Congress hoped would yield
immediate benefits. See id., at 17.12
                              B
   It is noteworthy for present purposes that the statute
Congress crafted to depart from the much-maligned “stacking” sentencing regime did so in a two-part fashion. First,
§403(a) eliminated 25-year stacked sentences for first-time
§924(c) offenders. Second, §403(b) addressed the retroactivity of the §403(a) benefit in a “ ‘targeted way,’ ” so as to
ensure that judges were no longer constrained to impose 25-
year stacked sentences on first-time §924(c) offenders moving forward. Id., at 15 (quoting 164 Cong. Rec., at S7645
(statement of Sen. Durbin)).
   That second part of Congress’s response—the focus of the
cases before us today—was highly consequential. By displacing the background rule that changes to sentencing
statutes apply only prospectively (to defendants who commit their offenses after the law’s effective date), Congress
made clear that the First Step Act’s more lenient penalties
were to apply to some “ ‘pending’ ” cases, too—i.e., the new
penalties would be applicable to certain defendants who
had committed their offenses before the First Step Act.
——————
   12 The dissent agrees that our job is to “interpret what Congress meant”

by the words in §403(b). Post, at 4. Here, Congress’s desire to change
the derided, draconian sentencing stacking scheme Deal had created
could not be clearer. Thus, far from “march[ing] in the parade of sentencing reform,” post, at 2, we are merely observing the events and circumstances that led Congress to take up the banner of sentencing reform
itself.
16                HEWITT v. UNITED STATES

                     Opinion of JACKSON, J.

Senators Brief 15 (quoting §403(b), 

). Per
§403(b), any defendant who still needed to be sentenced as
of the First Step Act’s effective date would receive the Act’s
more lenient penalties. Thus, as a practical matter, judges
would no longer have to impose harsh “stacked” sentences
upon first-time §924(c) offenders.
   Notably, because §403(b) retroactivity was only partial, it
differed substantially from the full retroactivity Congress
employed with respect to other kinds of penalty changes it
instituted in the First Step Act. See, e.g., §404(b), 

; Terry v. United States, 

, 491 (2021) (explaining that Congress made the First Step Act’s statutory
changes to the crack-cocaine minimums fully retroactive,
and thus “gave courts authority to reduce the sentences” of
previously sentenced crack offenders, where applicable).
Congress certainly had the full-retroactivity option before
it when it crafted §403; indeed, earlier versions of the Act
would have extended §403(a) benefits to at least some
§924(c) offenders who were already sentenced. See, e.g.,
Sentencing Reform Act of 2015, H. R. 3713, 114th Cong., 2d
Sess., §5(b)(2), pp. 14–16 (2016) (providing for reduced
terms of imprisonment in “certain past cases” (capitalization and italics deleted)); Sentencing Reform and Corrections Act of 2017, S. 1917, 115th Cong., 1st Sess., §104(b)(2),
pp. 13–15 (2017) (permitting “sentence reduction” for certain “past cases” (capitalization deleted)). But authorizing
the reopening of closed cases upends finality and can also
be administratively burdensome. See Senators Brief 15
(noting that Congress forwent full retroactivity to serve “judicial economy” and “preserv[e] sentences that were actually valid and final”). Section 403’s partial retroactivity
avoided these problems, while still advancing Congress’s
aim of changing how first-time §924(c) defendants are sentenced.
   In short, §403(b)—a middle-ground solution to the prob-
                  Cite as: 

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                     Opinion of JACKSON, J.

lem of harsh “stacked” sentences for first-time §924(c) offenders—reflected a balance of Congress’s policy objectives.
By leaving intact §924(c) sentences that judges had already
imposed, Congress reinforced its interest in finality and
avoided burdening district courts with additional litigation.
But it also substantially advanced its goal of returning a
significant amount of sentencing discretion to district court
judges moving forward, by giving retroactive effect to the
Act’s more lenient penalties for those first-time §924(c) offenders who had yet to be sentenced.
                                V
   The reading of §403(b) that petitioners and the Government promote thus coheres with the text, context, and history of that provision. Under this view, First Step Act sentencing benefits apply to all first-time §924(c) offenders
sentenced after the Act’s enactment date (whether it is an
initial sentencing or a resentencing). This means that
§403(b)’s retroactivity line falls between those past §924(c)
offenders with final sentences that are still in effect, on the
one hand, and those who still need to be sentenced for their
§924(c) offense, on the other. The former are stuck with
their old sentences, for finality reasons, while the latter are
eligible for First Step Act benefits at resentencing, since
they have to be sentenced regardless.
   Under amicus and the dissent’s reading, however, there
exists a further line of division within the group of offenders
who currently lack a sentence—separating those who have
been sentenced previously for the §924(c) offense at issue
from those who have not. For individuals in the former
camp, per amicus and the dissent, a judge must return to
the superseded sentencing scheme and impose stacked 25-
year sentences when such defendants are resentenced.
   Carving up the yet-to-be-sentenced group of offenders in
this way does not reflect Congress’s intent. See Senators
Brief 17 (a bipartisan group of Senators, explaining that
18               HEWITT v. UNITED STATES

                    Opinion of JACKSON, J.

“[t]he considerations animating the First Step Act’s enactment undermine any suggestion that Congress intentionally excluded from Section 403’s reach pre-Act offenders
whose sentences are invalid as a matter of law”). Nor does
it comport with the statutory scheme that Congress enacted, for two primary reasons.
   First, the text and context of §403(b) do not support differentiating between §924(c) offenders on the mere basis of
the historical fact of a past sentencing (as we explained in
Part III, supra), and, frankly, it is not clear what distinguishing between previously sentenced and never-beforesentenced offenders would accomplish. The prior imposition of a sentence does not bear on finality; if the offender
currently lacks a sentence, then a court will have to resentence the defendant in any event. And though it would
make sense to draw the line as amicus and the dissent do if
the prior imposition of a sentence helped judges to more accurately identify serious first-time §924(c) offenders—potentially justifying the harsh and outdated stacked penalties that the First Step Act supplanted—nothing in the
legislative record suggests this is so. Stated simply: The
distinction between previously sentenced defendants and
those who have never been sentenced before seems to make
no difference in terms of the retroactivity aims of the statute.
   By contrast, requiring judges to impose Deal-era stacked
§924(c) sentences at resentencings runs headlong into the
animating aims of the First Step Act. See Miller v. French,

 (2000) (rejecting an interpretation that
would undermine the statute and run “plainly contrary to
Congress’ intent in enacting” it). Neither amicus nor the
dissent can explain why Congress would have wanted sentencing judges, who are presently working to dole out proportionate plenary sentences under the new regime, to have
to return to the draconian, pre-Act scheme for offenders
who just happen to be facing resentencing, as opposed to
                  Cite as: 

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                      Opinion of the Court

first sentencing. Requiring that kind of reversion prevents
judges from uniformly moving past Deal, which was the primary point of Congress’s enactment of §403.
   Second, the reading of §403(b) that we adopt today is
plainly more administrable than the one amicus and the
dissent offer. Amicus argues that his interpretation is easy
to apply, because a district judge only needs to know
whether a prior sentence had ever been imposed upon the
defendant for the relevant offense. But that knowledge is
not enough—the sentencing judge would still need to reference, recall, and apply the superseded “stacking” regime, if
applicable. And there is a much more straightforward way
to administer §403(b): From the Act’s enactment date onward, sentencing judges impose the First Step Act’s lessened mandatory minimums for any first-time §924(c) offender—full stop. This reading of §403(b) requires no
additional effort on the part of the judge to track down a
defendant’s sentencing history or to confirm what mandatory minimums previously governed. And it allows district
judges to treat all first-time §924(c) defendants who appear
before them for sentencing in an equitable manner that
minimizes sentencing disparities, consistent with Congress’s sentencing directives.
                         …
   Under the interpretation of §403(b) we adopt today, all
first-time §924(c) offenders who appear for sentencing after
the First Step Act’s enactment date—including those whose
previous §924(c) sentences have been vacated and who thus
need to be resentenced—are subject to the Act’s revised
penalties. The Fifth Circuit’s contrary reading of §403(b) is
reversed, and its judgment in these cases is remanded for
further proceedings.
                                             It is so ordered.
                  Cite as: 

 (2025)          1

                      ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
            TONY R. HEWITT, PETITIONER
23–1002                 v.
                  UNITED STATES

   COREY DEYON DUFFEY, ET AL., PETITIONERS
23–1150             v.
              UNITED STATES
 ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED
   STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
        Nos. 23–1002 and 23–1150. Decided June 26, 2025

   JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE
KAVANAUGH, and JUSTICE BARRETT join, dissenting.
   In the First Step Act of 2018, Congress reduced the
mandatory-minimum sentence for certain firearm offenses.
Like all changes to sentencing law, this amendment applies
prospectively. But Congress also thought it wise to apply
the amendment to “Pending Cases.” Of course, “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.” 

. In other words,
the amendment applies retroactively only if the defendant
had yet to be sentenced when Congress passed the Act in
2018. Petitioners, who were sentenced in 2010, do not come
close to meeting that test.
   Today, the Court disfigures the Act in order to reach a
different result. Its interpretation relies on two necessary
premises. First, the Court insists that what Congress really meant to say is that the amendment applies retroactively unless “a legally valid sentence” is in force on the
Act’s date of enactment. Second, to get around the fact that
petitioners did have “legally valid” sentences when the Act
2                 HEWITT v. UNITED STATES

                       ALITO, J., dissenting

was passed, the Court invents a novel “vacatur” principle.
The Court tells us that the 2022 vacatur of petitioners’ sentences rendered those sentences legal nullities from their
inception. The Court’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. But nothing in the text or broader
context supports such a boundless interpretation. Indeed,
the portions of today’s decision that command the votes of
only three Justices give the game away. Animating the
Court’s atextual interpretation is a thinly veiled desire to
march in the parade of sentencing reform. But our role is
to interpret the statute before us, not overhaul criminal
sentencing.
                               I
   Sixteen years ago, a jury convicted petitioners Corey
Duffey, Tony Hewitt, and Jarvis Ross of multiple 

(c) offenses for use of a firearm in furtherance of a
crime of violence. At the time, first-time §924(c) offenders
like petitioners could receive, after a single trial, a 5-year
mandatory-minimum sentence for an initial §924(c) conviction and a consecutive 25-year mandatory-minimum sentence for each “second or subsequent” §924(c) conviction.
See §§924(c)(1)(A)(i), (c)(1)(C), (c)(1)(D)(ii) (2012 ed.); Deal
v. United States, 

 (1993). In 2010, the
District Court sentenced petitioners under this so-called
stacking procedure, and after a remand, the District Court
resentenced petitioners in 2012. Direct review of their convictions and sentences was complete by 2015. See United
States v. Ross, 

 (CA5 2013) (per curiam) (dismissing Duffey’s appeal because it presented “no
nonfrivolous issue for appellate review”); United States v.
Ross, 

 (CA5 2014) (per curiam) (affirming Hewitt’s and Ross’s sentences); Hewitt v. United States,
                  Cite as: 

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                      ALITO, J., dissenting

 (2015) (denying Hewitt’s petition for a writ
of certiorari).
   Petitioners’ sentences had thus long been final when Congress enacted the First Step Act on December 21, 2018. The
Act introduced a bevy of sentencing reforms, including an
amendment that eliminated the practice of §924(c) sentence
stacking. See 132 Stat. 5221–5222. Although it had previously considered applying this amendment to all §924(c) offenders (including those with final sentences), see S. 2123,
114th Cong., 1st Sess., §104(b)(2) (2015) (reported by Committee), Congress settled on a far narrower retroactivity
command:
      “APPLICABILITY TO PENDING CASES.—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.” 

.
On the “date of enactment,” petitioners’ 2012 sentences remained in full force. As such, petitioners did not move to
reduce their sentences in the immediate aftermath of the
Act’s passage.
  But several strokes of good fortune soon came petitioners’
way. The year after Congress passed the First Step Act, we
held in United States v. Davis, 

, 448 (2019),
that §924(c)’s residual clause is unconstitutionally vague.
Then, later that same year, the Fifth Circuit determined
that Davis should apply retroactively. See United States v.
Reece, 

, 635 (2019). Seeking to take advantage
of these fortuitous developments, petitioners successfully
moved to set aside some, though not all, of their §924(c) convictions that were predicated on the residual clause. Although the District Court could have vacated petitioners’
sentences for only those invalid §924(c) counts, petitioners
caught yet another lucky break. The District Court opted
4                 HEWITT v. UNITED STATES

                      ALITO, J., dissenting

to vacate their entire sentences and ordered plenary resentencing on the remaining counts. Petitioners now try to
push their luck even further, contending that the District
Court should apply the First Step Act’s reduced mandatory
minimum for their remaining §924(c) counts.
                                II
  As all agree, petitioners’ argument requires us to interpret what Congress meant when it said “a sentence for the
offense has not been imposed as of [the Act’s] date of enactment.” What first jumps out about this provision is that
Congress used the present-perfect tense in the phrase “has
not been imposed.” The present-perfect tense “denotes an
act, state, or condition that” is either (1) “now completed” or
(2) “continues up to the present.” The Chicago Manual of
Style §5.132, p. 268 (17th ed. 2017).
  Context often indicates whether a speaker is using the
former sense of the present-perfect tense (e.g., “he has been
awarded a trophy”) or the latter sense of the present-perfect
tense (e.g., “he has trained for a trophy for the last three
years”). See B. Garner, The Chicago Guide to Grammar,
Usage, and Punctuation 97 (2016). Consider the following
example. Suppose I ask a man passing by a courthouse,
“Has a sentence been imposed on John Smith?” He could
respond either, “Yes, on July 1” or “Yes, since July 1.” The
former response is perhaps the more natural one, and it assumes I asked for the historical fact of Smith’s sentencing
in the indefinite past. The latter response is correct (though
perhaps awkward), and it assumes I asked about the continuing legal validity of Smith’s sentence up to the present.
  The First Step Act’s “grammatical structure conceivably
leaves some room for either reading,” United States v. Uriarte, 

, 607 (CA7 2020) (en banc) (Barrett, J.,
dissenting), but petitioners lose either way. On one hand,
the phrase “a sentence . . . has . . . been imposed as of [the
Act’s] date of enactment” could refer to the historical fact
                      Cite as: 

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                            ALITO, J., dissenting

that a district court imposed a sentence before the Act’s passage, regardless of whether that sentence remains legally
valid in the future. This “historical-fact interpretation”
plainly forecloses relief for petitioners because, as no one
disputes, the District Court first imposed their sentences
well before the Act’s passage.1 On the other hand, “a sentence . . . has . . . been imposed as of [the Act’s] date of enactment” could mean that a defendant was subject to a legally valid sentence that continued to be in force on the
Act’s enactment date. But again, petitioners did have legally valid sentences “as of [the Act’s] date of enactment,”
so they lose under this “legal-validity interpretation” of the
Act too.2
——————
   1 The Court dismisses the historical-fact interpretation out of hand be-

cause, as it understands English grammar, the present-perfect tense requires “a connection to the present.” Ante, at 7, n. 5. But before pronouncing new rules of grammar, the Court might first consider
consulting the authorities it cites. See, e.g., R. Huddleston & G. Pullum,
The Cambridge Grammar of the English Language 144 (2002) (noting
the “present perfect allows for the inclusion, under restrictive conditions,
of a past time adjunct”). As these authorities suggest, the present-perfect
tense allows one to say, for example, “[h]e has got up at five o’clock,” 

(emphasis deleted), or “he has played golf before yesterday.”
   2 The Act’s requirement that a sentence “has . . . been imposed as of

[the Act’s] date of enactment” provides an essential temporal benchmark
for both the historical-fact and the legal-validity interpretation. Remarkably, however, the Court reads this requirement out of the Act entirely. The Court insists that sentencing courts should “read” the First
Step Act at “the moment of resentencing,” without any reference to the
Act’s enactment date. Ante, at 8, n. 7. But the Court is mistaken. It
starts on the right foot, acknowledging the “widely accepted modern legislative drafting convention that a law should not be read to speak as of
the date of enactment.” Carr v. United States, 

 (2010)
(ALITO, J., dissenting). This “convention” provides that, “except in unusual circumstances,” “all laws . . . should be written in the present tense”
to ensure that a “ ‘legislative provision speaks as of any date on which it
is read (rather than as of when drafted, enacted, or put into effect).’ ”

 (quoting Senate Office of the Legislative Counsel, Legislative Drafting Manual §103(a), p. 4 (1997) (emphasis deleted)). But the First Step
Act is such an “unusual circumstanc[e]” in which Congress deviated from
6                   HEWITT v. UNITED STATES

                         ALITO, J., dissenting

   Realizing the Act’s use of the present-perfect tense alone
cannot help petitioners, the Court invents a novel “vacatur”
principle to supercharge the legal-validity interpretation.
The Court tells us that the First Step Act incorporates the
background “presumption” that “vacated court orders are
void ab initio and thus lack any prospective legal effect.”
Ante, at 10. This revamped version of the legal-validity interpretation means that “a sentence . . . has . . . been imposed as of [the Act’s] date of enactment” if a defendant receives a legally valid sentence before the Act’s passage and
that sentence is never, at any future time, vacated. Under
this view, the 2022 vacatur of petitioners’ 2012 sentences
implies that, “[b]y operation of [a] legal fiction,” their 2012
sentences “never occurred” and so could not have been legally valid as of the Act’s enactment date. Ibid.
   The Court’s vacatur-inflected legal-validity interpretation thus rests on two necessary premises. First, the legal-validity interpretation is superior to the historical-fact interpretation. Second, the Act incorporates the “vacatur”
principle. If either premise falters, so does the Court’s interpretation. In my view, there is little doubt that both of
the necessary premises fail.
                              III
                               A
  To start, the most plausible reading of the retroactivity
provision is that “a sentence . . . has . . . been imposed”
when, as a matter of historical fact, a district court has sentenced a defendant. Subsequent legal changes—such as the
vacatur of a previously imposed sentence—do not change
the purely historical fact that a defendant was, at a point
in time, actually sentenced. When the Act asks whether a
sentence “has . . . been imposed,” it refers to the unchanging
——————
this “convention.” The Act takes the unusual steps of referencing the
date on which it was “enacted” and employing the present-perfect tense,
not the ordinary present tense.
                   Cite as: 

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                       ALITO, J., dissenting

historical fact of sentencing and whether it occurred before
the “date of enactment.”
   To see why, begin with the word “imposed.” A “sentence
is imposed” when there is a “pronouncement of judgment.”
Lott v. United States, 

 (1961); see Young
v. United States, 

, 463 (CADC 2019) (“[I]n ordinary usage a sentence is ‘imposed’ when the district court
pronounces it”). The Sentencing Reform Act treats the “imposition” of a sentence as the moment when a district court
“state[s] in open court the reasons for . . . the particular sentence.” 

(c); Black’s Law Dictionary 1470
(12th ed. 2024) (defining “pronounce” as “announce formally”). The word “imposed” is thus most naturally understood to refer to a concrete “action by a district court” that
occurs at a specific point in time. Uriarte, 975 F. 3d, at 607
(Barrett, J., dissenting); see also United States v. Carpenter, 

, 791 (CA6 2023) (Kethledge, J., concurring
in denial of rehearing en banc) (“[T]he act of imposing a sentence could not possibly ‘continue up to the present’—because the imposition of a sentence occurs at a fixed point in
time”). A defendant may be sentenced, resentenced, and
resentenced again, and at each hearing a sentence is “imposed” even if some of those sentences are later set aside as
legally invalid.
   Our cases and other provisions of Title 18 confirm that
the word “imposed” marks the historical point at which a
sentence is pronounced regardless of whether that sentence
has continuing legal validity. For example, in the midst of
a discussion about plenary resentencing (a topic of particular relevance to these cases), we once noted that “[i]n remanded cases . . . trial courts have imposed a sentence on
the remaining counts longer than the sentence originally
imposed on those particular counts.” Greenlaw v. United
States, 

 (2008) (emphasis added). In another case, a joint opinion of the Court noted that the “death
8                 HEWITT v. UNITED STATES

                      ALITO, J., dissenting

sentences imposed for armed robbery, however, were vacated.” Gregg v. Georgia, 

, 161–162 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.) (emphasis
added). In both instances, our use of “imposed” signified
only that a court had, at some point in time, pronounced a
sentence. Our use of “imposed” could not possibly be understood to refer to the legal validity of those later-invalidated
sentences. Further, in other parts of Title 18, Congress
uses “imposed” to signify the historical fact of a sentence,
not its continuing legal validity. See, e.g., §3742(a)(2) (allowing a defendant to appeal “an otherwise final sentence
if the sentence . . . was imposed as a result of an incorrect
application of the sentencing guidelines”); §3742(f )(1) (empowering courts of appeals to remand on a finding that “the
sentence was imposed in violation of law”). I see no reason
to think Congress intended a different meaning of “imposed” in another provision of Title 18.
   Additional support for the historical-fact interpretation is
found in Congress’s use of the phrase “a sentence.” The
word “a” is an “indefinite article” that “points to a nonspecific object, thing, or person that is not distinguished
from the other members of a class.” B. Garner, Modern
English Usage 1195 (5th ed. 2022) (Modern English Usage).
“When used as an indefinite article, ‘a’ means ‘[s]ome undetermined or unspecified particular.’ ” McFadden v. United
States, 

, 191 (2015) (quoting Webster’s New
Internal Dictionary 1 (2d ed. 1954)). In that sense, Congress’s use of the indefinite article lends a broad construction to the word “sentence,” as if to say “any sentence” ever
imposed, including a later-vacated sentence. In conjunction
with the word “imposed,” the phrase “a sentence” thus puts
the statutory focus on the existence of any kind of sentence
pronounced in the record, regardless of that sentence’s present legal status.
   Indeed, contrary to the Court’s suggestion, the word “sentence” does not ineluctably mean a “legally valid” sentence.
                  Cite as: 

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                      ALITO, J., dissenting

Our own cases prove the point because we have often found
it necessary to clarify whether a sentence is valid or invalid.
See, e.g., Swarthout v. Cooke, 

 (2011) (per
curiam) (“There is no right under the Federal Constitution
to be conditionally released before the expiration of a valid
sentence” (emphasis added)); Pollard v. United States, 

 (1957) (“The only sentence that was entered at the 1952 hearing was the one of probation, admittedly invalid because of petitioner’s absence” (emphasis
added)); Richmond v. Lewis, 

 (1992) (“[P]etitioner’s conviction was found valid but his sentence invalid”
(emphasis added)); see also Uriarte, 975 F. 3d, at 607 (Barrett, J., dissenting) (“That is why it is perfectly coherent to
describe the procedural posture of a case by saying, ‘a sentence was imposed last year, but it has since been vacated
on appeal’ ”). If Congress sought to narrow “a sentence” in
a specialized way to indicate a legally valid sentence, it
could have referred to “a final sentence,” “a legally valid
sentence,” or more prosaically, “the sentence.” Accord,
United States v. Hernandez, 

, 969 (CA11
2024).
   Reading the retroactivity provision in context, the phrase
“a sentence has not been imposed” most straightforwardly
means that a district court has not, as a matter of historical
fact, sentenced a defendant for his §924(c) offenses before
the Act’s “date of enactment.” So how can the Court read
the same text to refer to a presently valid sentence, rather
than one that was historically “imposed” in the past? See
ante, at 10. Bizarrely, the Court’s analysis begins and ends
with Congress’s use of the present-perfect tense. Through
the use of a single hypothetical, which does not resemble
the structure of the provision actually before us, the Court
draws the conclusion that “the present-perfect tense conveys to a listener that the event in question continues to be
true or valid.” Ante, at 8. But, as I have explained, the
10                    HEWITT v. UNITED STATES

                           ALITO, J., dissenting

present-perfect tense is, as a general matter, capable of supporting either the historical-fact or legal-validity interpretation. The surrounding context and the specific words
Congress employed indicate how the present-perfect tense
may support one interpretation or the other. As to the actual words in the retroactivity provision (“imposed,” “a sentence”), the Court’s textual analysis in Part III–A is silent.3
——————
   3 The Court’s legal-validity interpretation also rests on the mistaken

premise that the past-perfect tense best captures the historical-fact interpretation. The Court claims “if an event is merely a relic of history
because it was voided by a subsequent action, the past-perfect (not the
present-perfect) tense would usually be the more appropriate verb
choice.” Ante, at 8. I hope readers do not look to this Court as an authority on English grammar because this broad pronouncement is badly mistaken. As support for its grammatical rule, the Court offers a hypothetical: suppose a U. S. Olympic Committee rule says that “athletes may
call themselves Olympic champions if a gold medal ‘has been awarded’
to them.” Ante, at 7. If the Olympic gold medalist is stripped of her
medal, however, the Court claims she can no longer call herself an
“Olympic champion” under the rule. To enable our athlete to still call
herself an Olympic champion based on her now-stripped medal, the
Court tells us “the past-perfect” tense would be “more appropriate” (e.g.,
“she had been awarded such a medal”). Ante, at 8–9. That is highly
debatable.
   The only lesson taught by the Court’s example is that the meaning of
language is heavily dependent on context. The obvious purpose of the
hypothetical rule is to restrict the class of individuals who are entitled to
the honor of calling themselves Olympic champions, and the Court presumes that the athlete in question lost her medal because she engaged
in improper conduct, e.g., taking performance-enhancing drugs. But suppose the medal was taken away for an illegitimate reason. Some historians think that Jim Thorpe, a legendary Native American athlete who
dominated the 1912 Olympics, was stripped of his medals at least in part
because of racism. See B. Crawford, All American: The Rise and Fall of
Jim Thorpe 209–210 (2005); J. Elfers, The Tour To End All Tours: the
Story of Major League Baseball’s 1913–1914 World Tour 18 (2003). That
was not completely undone until 2022, long after Thorpe died. See V.
Mather & T. Panja, Jim Thorpe Is Restored as Sole Winner of 1912 Olympic Gold Medals, N. Y. Times, July 15, 2022. Suppose Thorpe had been
asked: “Have you ever been awarded an Olympic medal?” Would he have
been a liar if he answered “yes”? The Court seems to think so.
                     Cite as: 

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                          ALITO, J., dissenting

The Court’s failure to defend the legal-validity interpretation is thus an independently fatal blow to its holding.
                                B
   Assuming the Court had proved up the legal-validity interpretation, it would still need to establish its “vacatur”
principle. That is, it would still need to prove not only that
the Act is concerned with a sentence’s continuing legal validity up to the “date of enactment,” but also that the Act
hinges on the continuing validity of a sentence after the
date of enactment. The Court can prove as much only by
inventing a “legal fiction” that a vacated sentence “never
occurred.” Ante, at 10. But one need only scratch the surface of this purported “legal fiction” to understand how thoroughly unpersuasive it is.
   As a preliminary matter, the Court’s “vacatur” principle
does not exist. The Court assures us that there is a wellestablished principle in the criminal law that “vacated
court orders are void ab initio and thus lack any prospective
legal effect.” 

 It derives this rule by over-reading a few
creative turns of phrase in our cases. See ante, at 11 (citing
North Carolina v. Pearce, 

 (1969) (stating
vacatur causes a conviction to be “ ‘wholly nullified and the
slate wiped clean’ ”); Pepper v. United States, 

 (2011) (noting vacatur “ ‘wipe[s] the slate clean’ ”)). But
a more careful reading of our precedents and other provisions in Title 18 indicates that vacatur does not erase the
historical fact of a previously imposed conviction or sentence. Further, even if the “vacatur” principle exists, the
——————
   Indeed, the Court offers no answer to the argument that the present-perfect tense may be properly used to refer to a past event that was later
undone. Instead, the Court promises readers that an answer will come
in Part IV of its opinion—i.e., the portions in which only three Justices
join. See ante, at 8, n. 6. But this promise goes unfulfilled. Part IV
contains no deus ex machina to salvage the Court’s interpretation; rather, Part IV throws a celebration for the First Step Act, perhaps hoping
readers lose sight of the text behind all the confetti.
12                  HEWITT v. UNITED STATES

                         ALITO, J., dissenting

Act’s retroactivity provision does not incorporate it.
                                1
    Our precedents foreclose the Court’s “vacatur” principle.
Take, for example, one of the cases the Court cites, Lewis v.
United States, 

 (1980). See ante, at 11. There,
the defendant challenged his conviction under a federal
statute prohibiting “ ‘[a]ny person who . . . has been convicted by a court of the United States or of a State’ ” from
“ ‘receiv[ing], possess[ing], or transport[ing] . . . any firearm.’ ” 

, and n. 1 (quoting 

(a)(1) (1970 ed.)). The defendant argued that his
predicate state conviction was invalid because he lacked
counsel and that, as such, he could not be convicted as a
felon in possession under the federal statute. We assumed
that the predicate state conviction was subject to invalidation (i.e., vacatur), see 

, but we nevertheless
upheld the felon-in-possession conviction. We reasoned
that the statute’s “sweeping” language, which is phrased in
the present-perfect tense just like the First Step Act, focused on “the fact of a [predicate] felony conviction.” 

. At the time of his federal offense, the defendant’s state
conviction was extant and thus disabled him from firearm
possession. Congress made “[n]o exception” for “a person
whose outstanding [predicate] conviction ultimately might
turn out to be invalid for any reason.” 

. So a subsequent invalidation of his state predicate conviction due to
his lack of counsel would not render that conviction “invalid
for all purposes.” 

. Lewis thus powerfully refutes
the Court’s vacatur principle. If vacatur of the defendant’s
predicate conviction implied the conviction “never
occurred,” as the Court today insists, then his felon-inpossession conviction could not stand. Ante, at 10. But that
is the very argument Lewis foreclosed.4

——————
 4 In responding to Lewis, the Court accidentally fires on its own posi-
                      Cite as: 

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                           ALITO, J., dissenting

   Although it supports the petitioners in this appeal, the
United States also concedes (albeit sheepishly in a footnote)
that the Court’s “general background legal principle that
vacatur makes a sentence void from the start for all purposes” is “incorrect.” Brief for United States 27, n. 4 (internal quotation marks and alterations omitted). As it
acknowledges, lower courts routinely follow Lewis and uphold convictions despite the later vacatur of predicate offenses. See, e.g., Burrell v. United States, 

, 27–
28 (CA2 2004) (“[I]t is the mere fact of [a prior] conviction
at the time of the charged possession, not the reliability of
the conviction, that establishes the §922(g)(1) predicate”
(internal quotation marks omitted)); United States v. Roberson, 

 (CA1 2014) (upholding a conviction for failure to register as a sex offender even though the
predicate sex offense was later vacated).
   Moreover, as the United States also acknowledges,
Lewis’s logic crosses into the constitutional context. Consider Bravo-Fernandez v. United States, 

 (2016),
in which we considered the application of issue preclusion
under the Double Jeopardy Clause when a jury returns inconsistent verdicts. It is well established that if a jury convicts on one count but acquits on another count involving
the same conduct, the acquittal has no issue preclusive effect. See 

. Likewise, if a jury acquits on one count
but fails to reach agreement on another count, the acquittal
has such an effect. See 

 at 13–14. In Bravo-Fernandez,
a jury convicted on one count but acquitted on others that
——————
tion. The Court justifies Lewis’s holding by explaining that “the defendant’s prior felony conviction had ‘never been overturned’—i.e., vacated—
at the time he possessed the weapon.” Ante, at 11, n. 8 (quoting Lewis v.
United States, 

 (1980)). But that is precisely the point.
Lewis afforded “prospective legal effect” to the defendant’s vacated conviction by refusing to ignore the historical fact of his predicate conviction
even after the vacatur. I see no way to reconcile that reasoning with the
Court’s rule that a vacated sentence never “retains prospective legal effect.” 

14                  HEWITT v. UNITED STATES

                         ALITO, J., dissenting

were claimed to involve the same conduct. The conviction,
however, was vacated due to “an unrelated legal error,” and
the defendant argued that the Court should treat the conviction as if it had never occurred and that the acquittal had
issue preclusive effect barring reprosecution. Id., at 9. We
rejected this argument, holding that the conviction’s later
invalidation did not “erase” its historical existence for the
purposes of issue preclusion because the vacatur did not
“bear on the factual determinations actually and necessarily made by the jury.” Id., at 21 (internal quotation
marks omitted). Bravo-Fernandez thus treated the historical fact of a later-vacated conviction as legally relevant,
which is irreconcilable with the Court’s “vacatur” principle.
   The only “ ‘unexpressed presumptio[n]’ ” I can derive from
our cases and those from the courts of appeals is the opposite of the one the Court advances today. Ante, at 10 (quoting Bond v. United States, 

 (2014)).
                               2
   Congress too has rejected the Court’s “vacatur” principle.
In the Sentencing Reform Act, Congress “se[t] forth a special . . . background principle” that is incompatible with the
“vacatur” rule invented today. Dorsey v. United States, 

 (2012) (emphasis deleted).5 That is, after a
sentence is vacated, a district court during resentencing
must apply the Sentencing Guidelines that “were in effect
on the date of the previous sentencing of the defendant
prior to the appeal.” 

(g)(1). The vacatur
of an initial sentence thus does not “wipe the slate clean” in
relation to the Guidelines range. Contra, Pepper, 562 U. S.,
at 507. Petitioners try to write off this provision as a deviation from the background presumption that vacatur voids
——————
  5 In Dorsey, 

, we referred to 

(a)(4)(A)(ii) as establishing the relevant “background principle.”
That provision incorporates by reference the anti-vacatur rule of
§3742(g).
                      Cite as: 

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                           ALITO, J., dissenting

a sentence ab initio. See Brief for Petitioner Hewitt 24;
Brief for Petitioner Duffey et al. 47. But §3742(g)(1)’s anti-vacatur rule cannot be described as a minor exception to an
otherwise widespread principle. The rule does not appear
in some “little-used backwater” of the Sentencing Reform
Act. West Virginia v. EPA, 

, 730 (2022). Rather, it is incorporated into the default procedures that apply in every criminal sentencing.6 See §§3553(a)(4)(A)(ii),
(a)(5)(B).
    In short, the Court’s failure to “sho[w] that its own rule
. . . existed as a background matter when Congress enacted”
the First Step Act is fatal to its position. Coinbase, Inc. v.
Bielski, 

, 753–754 (2023) (JACKSON, J., dissenting).
                               3
  Even assuming the “vacatur” principle is not a figment of
the Court’s imagination, it lacks any foothold in the Act’s
text. “When called on to resolve a dispute over a statute’s
meaning, this Court normally seeks to afford the law’s
terms their ordinary meaning at the time Congress adopted
them.” Niz-Chavez v. Garland, 

, 160 (2021).
Of course, we sometimes look to principles beyond the four
corners of a statute to understand the background against
which Congress legislated. But we typically do so in discrete situations. For example, we look to background
common-law principles to fill in obvious gaps in statutes,
such as a missing mens rea element in a criminal statute.
See, e.g., Staples v. United States, 

 (1994)

——————
  6 The portion of the opinion in which only three Justices join expresses

concern that, under the historical-fact interpretation, district judges will
struggle “to reference, recall, and apply the superseded ‘stacking’ regime.” Ante, at 19. But I have far more faith in district judges’ ability to
enforce older sentencing regimes. Indeed, district judges’ familiarity
with 

(g), which routinely requires them to apply obsolete Sentencing Guidelines in the present, is proof positive.
16                HEWITT v. UNITED STATES

                       ALITO, J., dissenting

(mens rea); Agency Holding Corp. v. Malley-Duff & Associates, Inc., 

 (1987) (statutes of limitations);
Marx v. General Revenue Corp., 

 (2013)
(attorney’s fees and costs). Or we import extra-textual
meaning when Congress employs a “term of art that had an
established meaning under” a relevant “backdrop.” Stewart
v. Dutra Constr. Co., 

 (2005).
   The First Step Act fits neither mold, and the Court makes
no effort in Part III–B to analyze how its “vacatur” principle
maps on to the text. The Court points to no obvious gap in
the Act’s retroactivity provision that could be filled with
“recognized” “background principles of construction.”
Bond, 

. Nor does the Court suggest that
the utterly ordinary words in the Act’s retroactivity provision carry some specialized meaning related to vacatur. “In
the absence of some strong contrary indication” of specialized meaning, we must “ ‘assume that the ordinary meaning’ ” of words like “sentence,” which captures both extant
and vacated sentences, “controls.” Monsalvo Velázquez v.
Bondi, 

, ___ (2025) (ALITO, J., dissenting) (slip
op., at 4); see Part III–A, supra.
                               C
   The superiority of the historical-fact interpretation and
the nonexistence of the Court’s “vacatur” principle are independent reasons to reject the Court’s holding. But even
if the matter were close, two more factors counsel against
the Court’s rule.
   First, the retroactivity provision’s title—“APPLICABILITY
TO PENDING CASES”—advises against the Court’s boundless
interpretation. “[T]he title of a statute and the heading of
a section are tools available for the resolution of a doubt
about the meaning of a statute.” Dubin v. United States,

, 120–121 (2023) (internal quotation marks
omitted); see also Yates v. United States, 

, 552
(2015) (ALITO, J., concurring in judgment) (“Titles can be
                  Cite as: 

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                      ALITO, J., dissenting

useful devices to resolve doubt about the meaning of a statute” (internal quotation marks omitted)). Here, the phrase
“Pending Cases” suggests Congress was concerned with the
finite population of defendants who, on the date of the First
Step Act’s enactment, lacked an initial sentence for §924(c)
offenses. See Black’s Law Dictionary, at 1366 (defining
“pending” as “[r]emaining undecided; awaiting decision”);
Modern English Usage 813 (defining “pending” as “awaiting an outcome”). But the Court’s “vacatur” principle would
obliterate that closed set and refashion the retroactivity
provision as an open-ended entitlement for any defendant
convicted of multiple §924(c) offenses whose sentence is vacated at any time and for any reason. That means, as the
United States concedes, the “universe” of “Pending Cases”
would “increase,” for example, “anytime this Court issues a
decision that affects the validity of 924(c) sentences.” Tr. of
Oral Arg. 49. If Congress intended the retroactivity provision to benefit such an amorphous population that may forever grow in size, I seriously doubt it would have labeled
the Act’s retroactivity provision with the phrase “Pending
Cases.”
   Second, the presumption against retroactivity further
weighs against the Court’s unnecessarily broad interpretation. The Federal Saving Statute sets forth “an important
background principle of interpretation” that “a new criminal statute that ‘repeal[s]’ an older criminal statute shall
not change the penalties ‘incurred’ under that older statute
‘unless the repealing Act shall so expressly provide.’ ”
Dorsey, 

, 274 (quoting 

). Accordingly, Congress may give retroactive effect to new reductions in criminal penalties, but it must do so with “plain
import” or “fair implication.” 

 (internal
quotation marks omitted). Here, the First Step Act provides a clear intent to rebut the presumption against retroactivity as to offenders for whom a sentence “has not been
imposed.” Although I believe the scope of that retroactivity
18               HEWITT v. UNITED STATES

                      ALITO, J., dissenting

command is sufficiently clear for the reasons I have already
given, to the extent there is any ambiguity about how far
the Act’s retroactivity command should go, the presumption
puts a thumb on the scale against construing the retroactivity command to its broadest extent as the Court does today.
                               IV
   After the Court is through with the text and nonexistent
principles of vacatur, three Justices continue on for pages,
sparing no effort, to extol the “much-anticipated, much-heralded” First Step Act. Ante, at 15. But what is the point
of all this lauding? Perhaps realizing the weakness of their
textual argument, the three Justices think it wise to spruce
up the opinion. They attempt to do so by asserting that
when a “ ‘bipartisan’ ” “supermajority” of Congress passes
“landmark” legislation, it intends to go big, down to the very
last subsection (or here, application note to a subsection).
Ante, at 3; ante, at 15 (opinion of JACKSON, J., joined by
SOTOMAYOR and KAGAN, JJ.). So I gather they would have
us broadly construe every atom of the “landmark” First
Step Act in a way that furthers Congress’s supposedly
grand ambition to turn the page on “harsh” sentencing
practices. Ante, at 16.
   There is no “landmark” canon of construction requiring
the Court to construe important legislation to its furthest
possible implication. “ ‘[N]o legislation pursues its purposes
at all costs.’ ” American Express Co. v. Italian Colors Restaurant, 

 (2013) (quoting Rodriguez v.
United States, 

, 525–526 (1987) (per curiam)).
Indeed, just last Term we rejected the same sort of “landmark” argument when interpreting a different provision of
the First Step Act. See Pulsifer v. United States, 

, 151–152 (2024). Experience shows that more often
than not, “landmark” legislation reflects the necessary log-
                    Cite as: 

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                         ALITO, J., dissenting

rolling of the legislative process, which prizes political compromise over statutory clarity. That reality cautions
against the precise move the Court makes today: an inference that Congress hid in an “ancillary” and intentionally
circumscribed provision a retroactivity command that
would “alter the fundamental details” of how §924(c) sentencing should work for all time. Whitman v. American
Trucking Assns., Inc., 

 (2001).
   The three-Justice opinion rattles off the public criticisms
that supposedly spurred Congress to reform the practice of
§924(c) sentence “stacking.” But this discussion is beside
the point. Nothing in this multi-page discussion sheds light
on how Members of Congress understood the retroactivity
provision before us.
   Carried away with its enthusiasm for the changes effected by the First Step Act, the three Justices bestow an
entirely undeserved windfall on the actual petitioners in
these cases. Due to the especially violent nature of their
robberies,7 petitioners were convicted of more than a dozen
§924(c) offenses, about half of which were not predicated on
§924(c)’s residual clause.
   In 2019 we decided Davis and provided a basis to set
aside petitioners’ §924(c) convictions under the residual
clause, but Davis did nothing to disturb petitioners’ other
§924(c) convictions and associated mandatory-minimum
sentences. In cases “involv[ing] multicount indictments
and a successful attack by a defendant on some but not all
——————
  7 Dubbed the “Scarecrow Bandits” due to their plaid-shirt and floppy-

hat disguises, petitioners and their confederates “violently robbed” a
string of banks in the Dallas-Fort Worth area around 2008. 

, *1 (ND Tex. July 30, 2009); see FBI, Scarecrow Bandit Leader
Sentenced to 355 Years in Federal Prison on Bank Robbery and Firearms
Convictions (May 5, 2010). During the robberies, the Scarecrow Bandits
held bank employees and customers at gunpoint and physically assaulted them with firearms and stun guns. See 

, *1.
In total, the conspiracy stole more than $350,000 before authorities
caught up with them. See Brief for United States 7.
20                   HEWITT v. UNITED STATES

                           ALITO, J., dissenting

of the counts of conviction,” a court, “in such instances, may
vacate the entire sentence on all counts” and “reconfigure
the sentencing plan” in toto. Greenlaw, 

(emphasis added).8 But, as petitioners’ counsel conceded,
courts are under “no obligation” to follow this convention
and may instead choose to vacate only those parts of the
sentence related to an intervening change in law. Tr. of
Oral Arg. 15. Nor does this strike me as a case in which full
vacatur was warranted. Section 924(c) convictions must
run consecutively “with any other term of imprisonment.”
§924(c)(1)(D)(ii). So §924(c) sentences are presumably easier to identify and extract from a defendant’s total term of
imprisonment, often obviating the need for a plenary resentencing. The likely unnecessary vacatur of each petitioner’s
entire sentence was thus a stroke of good fortune that
opened the door to petitioners’ First Step Act claims.9 The
lower courts (correctly) rejected those efforts, but petitioners have found a sympathetic audience in this Court. The
——————
   8 The chief reason for vacating perfectly valid convictions in such cases

is to allow the sentencing court to consider whether the sentence previously imposed on a valid count provides sufficient punishment for the
defendant’s conduct. See Greenlaw, 554 U. S., at 253–254. Suppose a
defendant is convicted of two offenses, each with a 5-year mandatory
minimum. The sentencing judge, thinking that the appropriate punishment for the defendant’s criminal conduct is 10 years’ imprisonment, imposes a 5-year term of imprisonment on both counts and runs the counts
consecutively. If one of the counts of conviction is reversed and the case
is remanded, the sentencing judge may wish to enlarge the initial 5-year
sentence on the remaining count to 10 years’ imprisonment. So the defendant “ultimately may gain nothing from his limited success on appeal.” Id., at 254. It is therefore ironic that the unnecessary vacatur of
petitioners’ valid convictions has given them a benefit.
   9 The District Court’s willingness to vacate petitioners’ entire sen-

tences appears to have been informed by the position of the United
States, which “agreed” with petitioners that the “sentences on all remaining counts should be vacated.” Agreed Order in No. 3:08–cr–167
(ND Tex., Nov. 2, 2021), ECF Doc. 700, p. 2 (Ross); see Agreed Order in
No. 3:08–cr–167 (June 14, 2021), ECF Doc. 672, p. 2 (Duffey); Agreed Order in No. 3:08–cr–167 (Aug. 19, 2021), ECF Doc. 683, p. 2 (Hewitt).
                  Cite as: 

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                      ALITO, J., dissenting

three Justices attribute today’s outcome to grand congressional design coming to fruition, but in reality, petitioners’
change in fortune can be attributed only to the happenstance of legal developments with not the faintest relationship to the First Step Act.
                         …
   The Court ignores Congress’s intention to afford only limited retroactive relief to certain offenders under the First
Step Act. Instead, the Court embraces an interpretation
that has no limiting principle and affords petitioners a
windfall. That is an indefensible result based on indefensible reasoning. I cannot agree with the Court’s decision, so
I must respectfully dissent.