NOT RECOMMENDED FOR PUBLICATION File Name: 23a0209n.06
No. 22-1198 FILED UNITED STATES COURT OF APPEALS May 02, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN TIMOTHY I. CARPENTER, ) Defendant-Appellant. ) ) OPINION
Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. This case is before us for a third time. In this appeal,
Timothy Carpenter appeals his sentence of 116 years in prison, imposed by the district court in
2022 for Carpenter’s role (mostly as a lookout) in a string of armed robberies of Radio Shack and
T-Mobile stores in and around Detroit. That was the same sentence that the district court first
imposed on Carpenter in 2014, mostly because of mandatory-minimum terms required by
Congress. Carpenter argues that, as a result of Congress’s enactment of the First Step Act in 2018,
he was not subject to those mandatory minimums at his 2022 resentencing. But Congress chose
not to make the First Step Act fully retroactive; and we find ourselves compelled to conclude, as
did the district court, that the Act did not apply to Carpenter’s resentencing. We therefore affirm.
I.
This case has a long procedural history, but the relevant chronology is as follows. In 2013,
after a jury trial, Timothy Carpenter was convicted on six counts of robbery in violation of the
Hobbs Act, 18 U.S.C. § 1951(a), and five counts of using or carrying a firearm during a crime of No. 22-1198, United States v. Carpenter
violence under 18 U.S.C. § 924(c). At that time, § 924(c)(1)(C) mandated a minimum sentence of
25 years (i.e., 300 months) in prison for any “second or subsequent conviction” under that
section—including when the second or subsequent conviction came in the same case as the
defendant’s first conviction under that provision. See 18 U.S.C. § 924(c)(1)(C)(i); Deal v. United
States, 508 U.S. 129, 132–37 (1993). Moreover, § 924(c)(1)(D)(ii) required that every such
300-month sentence be consecutive to—meaning stacked on top of—the sentences for the
predicate offenses (here, the Hobbs Act robberies) and any other § 924(c) sentences imposed in
the case. Accordingly, in 2014, the district court sentenced Carpenter to a total of 1,395 months’
imprisonment—comprising 135 months on each of the robbery counts, to run concurrently,
followed by a consecutive 60-month sentence for the first § 924(c) count and four consecutive
300-month sentences on the remaining gun counts.
Carpenter appealed his criminal judgment. We affirmed—holding, among other things,
that the FBI’s use of cell-tower data for Carpenter’s phone was not the result of a Fourth
Amendment “search.” United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016).
In June 2018, the Supreme Court reversed our Fourth Amendment holding and remanded
Carpenter’s case back to this court. Carpenter v. United States, 138 S. Ct. 2206 (2018). That
December, Congress passed the First Step Act. See Pub. L. No. 115-391, 132 Stat. 5194 (2018).
As relevant here, the Act amended § 924(c)(1)(C) to mandate a minimum (and consecutive)
sentence of 25 years for violation of § 924(c) only when a § 924(c) conviction occurs “after a prior
conviction under this subsection has become final.” See First Step Act § 403(a). That amendment,
if applied in Carpenter’s case, would reduce his mandatory-minimum sentence on his § 924(c)
convictions by 80 years (from 105 years to 25). Yet Congress limited the Act’s retroactive effect:
Section 403(b) provides that “the amendments made by this section, shall apply to any offense that
2 No. 22-1198, United States v. Carpenter
was committed before” the Act’s effective date—December 21, 2018—“if a sentence for the
offense has not been imposed as of such date of enactment.”
Six months after the First Step Act became effective, we again affirmed Carpenter’s
criminal judgment, albeit on somewhat different grounds than before. United States v. Carpenter,
926 F.3d 313 (6th Cir. 2019). Carpenter then petitioned for rehearing in this court, arguing that a
recent Supreme Court decision afforded the district court more discretion than before as to
Carpenter’s sentences on the Hobbs Act counts. See Dean v. United States, 581 U.S. 62, 69 (2017).
We agreed with that argument, vacated Carpenter’s sentence, and remanded his case “to allow the
district court to sentence him anew.” United States v. Carpenter, 788 F. App’x 364, 364–65 (6th
Cir. 2019).
On remand, Carpenter argued that the First Step Act’s amendments applied to his
resentencing because it would take place after December 2018. The district court disagreed,
holding that—under § 403(b) of the Act as interpreted in United States v. Jackson, 995 F.3d 522
(6th Cir. 2021), cert. denied, 142 S. Ct. 1234 (2022)—the Act did not apply to Carpenter’s
resentencing. This appeal followed.
II.
We review de novo whether Carpenter is eligible for relief under § 403 of the First Step
Act. United States v. Jeffries, 958 F.3d 517, 519 (6th Cir. 2020).
Under § 403(b), the Act’s amendments applied to Carpenter’s resentencing only if “a
sentence” for his offenses “ha[d] not been imposed as of” the Act’s date of enactment, namely
December 21, 2018. As of that date, the district court had already imposed Carpenter’s original
sentence of 1,395 months; and that sentence remained in effect on that same date, since we did not
vacate it until almost a year later, in December 2019. For purposes of § 403(b), therefore, the
3 No. 22-1198, United States v. Carpenter
posture of Carpenter’s case is identical to that of the defendant in Jackson: in each case, on the
Act’s date of enactment, the defendant was “under sentence pending appeal.” Jackson, 995 F.3d
at 525. We held in Jackson that the Act’s amendments did not apply to the defendant’s
resentencing when his first sentence was not vacated until after the Act became law. Id. at 525–
56 (disagreeing with United States v. Bethea, 841 F. App’x 544, 550 (4th Cir. 2021)). We must
therefore hold the same here.
Relatedly, we agree with the government that our holding in Jackson did not conflict with
our holding in United States v. Henry, 983 F.3d 214 (6th Cir. 2020). In Henry, unlike this case,
the defendant’s sentence had been vacated before the Act’s effective date, and he had not yet been
resentenced by that date. Id. at 217. And the majority opinion in Henry distinguished cases—like
this one and Jackson’s—where the defendants’ “sentences were vacated and remanded after the
First Step Act’s enactment[.]” Id.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT RECOMMENDED FOR PUBLICATION File Name: 23a0209n.06
No. 22-1198 FILED UNITED STATES COURT OF APPEALS May 02, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN TIMOTHY I. CARPENTER, ) Defendant-Appellant. ) ) OPINION
Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. This case is before us for a third time. In this appeal,
Timothy Carpenter appeals his sentence of 116 years in prison, imposed by the district court in
2022 for Carpenter’s role (mostly as a lookout) in a string of armed robberies of Radio Shack and
T-Mobile stores in and around Detroit. That was the same sentence that the district court first
imposed on Carpenter in 2014, mostly because of mandatory-minimum terms required by
Congress. Carpenter argues that, as a result of Congress’s enactment of the First Step Act in 2018,
he was not subject to those mandatory minimums at his 2022 resentencing. But Congress chose
not to make the First Step Act fully retroactive; and we find ourselves compelled to conclude, as
did the district court, that the Act did not apply to Carpenter’s resentencing. We therefore affirm.
I.
This case has a long procedural history, but the relevant chronology is as follows. In 2013,
after a jury trial, Timothy Carpenter was convicted on six counts of robbery in violation of the
Hobbs Act, 18 U.S.C. § 1951(a), and five counts of using or carrying a firearm during a crime of No. 22-1198, United States v. Carpenter
violence under 18 U.S.C. § 924(c). At that time, § 924(c)(1)(C) mandated a minimum sentence of
25 years (i.e., 300 months) in prison for any “second or subsequent conviction” under that
section—including when the second or subsequent conviction came in the same case as the
defendant’s first conviction under that provision. See 18 U.S.C. § 924(c)(1)(C)(i); Deal v. United
States, 508 U.S. 129, 132–37 (1993). Moreover, § 924(c)(1)(D)(ii) required that every such
300-month sentence be consecutive to—meaning stacked on top of—the sentences for the
predicate offenses (here, the Hobbs Act robberies) and any other § 924(c) sentences imposed in
the case. Accordingly, in 2014, the district court sentenced Carpenter to a total of 1,395 months’
imprisonment—comprising 135 months on each of the robbery counts, to run concurrently,
followed by a consecutive 60-month sentence for the first § 924(c) count and four consecutive
300-month sentences on the remaining gun counts.
Carpenter appealed his criminal judgment. We affirmed—holding, among other things,
that the FBI’s use of cell-tower data for Carpenter’s phone was not the result of a Fourth
Amendment “search.” United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016).
In June 2018, the Supreme Court reversed our Fourth Amendment holding and remanded
Carpenter’s case back to this court. Carpenter v. United States, 138 S. Ct. 2206 (2018). That
December, Congress passed the First Step Act. See Pub. L. No. 115-391, 132 Stat. 5194 (2018).
As relevant here, the Act amended § 924(c)(1)(C) to mandate a minimum (and consecutive)
sentence of 25 years for violation of § 924(c) only when a § 924(c) conviction occurs “after a prior
conviction under this subsection has become final.” See First Step Act § 403(a). That amendment,
if applied in Carpenter’s case, would reduce his mandatory-minimum sentence on his § 924(c)
convictions by 80 years (from 105 years to 25). Yet Congress limited the Act’s retroactive effect:
Section 403(b) provides that “the amendments made by this section, shall apply to any offense that
2 No. 22-1198, United States v. Carpenter
was committed before” the Act’s effective date—December 21, 2018—“if a sentence for the
offense has not been imposed as of such date of enactment.”
Six months after the First Step Act became effective, we again affirmed Carpenter’s
criminal judgment, albeit on somewhat different grounds than before. United States v. Carpenter,
926 F.3d 313 (6th Cir. 2019). Carpenter then petitioned for rehearing in this court, arguing that a
recent Supreme Court decision afforded the district court more discretion than before as to
Carpenter’s sentences on the Hobbs Act counts. See Dean v. United States, 581 U.S. 62, 69 (2017).
We agreed with that argument, vacated Carpenter’s sentence, and remanded his case “to allow the
district court to sentence him anew.” United States v. Carpenter, 788 F. App’x 364, 364–65 (6th
Cir. 2019).
On remand, Carpenter argued that the First Step Act’s amendments applied to his
resentencing because it would take place after December 2018. The district court disagreed,
holding that—under § 403(b) of the Act as interpreted in United States v. Jackson, 995 F.3d 522
(6th Cir. 2021), cert. denied, 142 S. Ct. 1234 (2022)—the Act did not apply to Carpenter’s
resentencing. This appeal followed.
II.
We review de novo whether Carpenter is eligible for relief under § 403 of the First Step
Act. United States v. Jeffries, 958 F.3d 517, 519 (6th Cir. 2020).
Under § 403(b), the Act’s amendments applied to Carpenter’s resentencing only if “a
sentence” for his offenses “ha[d] not been imposed as of” the Act’s date of enactment, namely
December 21, 2018. As of that date, the district court had already imposed Carpenter’s original
sentence of 1,395 months; and that sentence remained in effect on that same date, since we did not
vacate it until almost a year later, in December 2019. For purposes of § 403(b), therefore, the
3 No. 22-1198, United States v. Carpenter
posture of Carpenter’s case is identical to that of the defendant in Jackson: in each case, on the
Act’s date of enactment, the defendant was “under sentence pending appeal.” Jackson, 995 F.3d
at 525. We held in Jackson that the Act’s amendments did not apply to the defendant’s
resentencing when his first sentence was not vacated until after the Act became law. Id. at 525–
56 (disagreeing with United States v. Bethea, 841 F. App’x 544, 550 (4th Cir. 2021)). We must
therefore hold the same here.
Relatedly, we agree with the government that our holding in Jackson did not conflict with
our holding in United States v. Henry, 983 F.3d 214 (6th Cir. 2020). In Henry, unlike this case,
the defendant’s sentence had been vacated before the Act’s effective date, and he had not yet been
resentenced by that date. Id. at 217. And the majority opinion in Henry distinguished cases—like
this one and Jackson’s—where the defendants’ “sentences were vacated and remanded after the
First Step Act’s enactment[.]” Id. at 222 n.2 (emphasis in original). The two cases are thus
distinguishable on the ground that Henry itself distinguished them. See Jackson, 995 F.3d at 525.
Jackson dictates that § 403 of the First Step Act did not apply to Carpenter’s resentencing.
Yet one can argue that, in this case, Congress’s sentencing provisions are working at cross-
purposes. Here, the pre-Act version of § 924(c) mandated a minimum sentence of 105 years’
imprisonment; whereas 18 U.S.C. § 3553(a) separately mandates that the court “impose a sentence
sufficient, but not greater than necessary, to comply with” the purposes of sentencing. The latter
mandate rings hollow here; perhaps Congress will eventually see fit to revisit retroactive
application of the First Step Act’s amendment to § 924(c)(1)(C).
* * *
The district court’s judgment is affirmed.