[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 22-13311 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ORESTES HERNANDEZ, a.k.a. John Doe 2, a.k.a. Cuco,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:96-cr-00443-JEM-4 USCA11 Case: 22-13311 Document: 49-1 Date Filed: 07/08/2024 Page: 2 of 34

2 Opinion of the Court 22-13311

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Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges. NEWSOM, Circuit Judge: This case presents an interesting question of statutory inter- pretation that has divided our sister circuits. Section 403(a) of the First Step Act of 2018 prohibits district courts from engaging in one particular form of (what some have called) sentence “stacking.” Specifically, and as relevant here, under § 403(a), if a defendant is charged in the same indictment with multiple counts of possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and he doesn’t have a previous § 924(c) conviction that has become final, the second and ensuing counts will carry only 5-year consecutive mandatory sentences, rather than the much higher consecutive mandatories that would have attached under preexisting law. See First Step Act of 2018, Pub. L. No. 115- 391, § 403(a), 132 Stat. 5194, 5221–22. Significantly for our pur- poses, § 403(b) then provides that § 403(a)’s modified stacking rule applies to pre-Act convictions—but only “if a sentence for the of- fense has not been imposed as of [the] date of enactment.” Id. § 403(b). We must decide whether a criminal sentence that was pronounced before the First Step Act’s effective date but thereafter vacated counts as “a sentence” that “has … been imposed” within the meaning of § 403(b)—in essence, whether § 403(b) refers to the historical fact of a sentence’s imposition, in which case the answer to the question as we’ve framed it is yes, or to the legal effect of that sentence, in which case the answer is no. Compare, e.g., United USCA11 Case: 22-13311 Document: 49-1 Date Filed: 07/08/2024 Page: 3 of 34

22-13311 Opinion of the Court 3

States v. Duffey, 92 F.4th 304, 309 (5th Cir. 2024) (yes), cert. granted, ___ U.S. ___, ___ S. Ct. ___, 2024 WL 3259688 (U.S. July 2, 2024), and United States v. Jackson, 995 F.3d 522, 525–26 (6th Cir. 2021) (yes), with, e.g., United States v. Mitchell, 38 F.4th 382, 389 (3d Cir. 2022) (no), and United States v. Merrell, 37 F.4th 571, 577 (9th Cir. 2022) (no). We hold that § 403(b)’s text and context make clear that a sentence that was pronounced pre-Act but thereafter vacated does qualify as “a sentence” that “has … been imposed” for § 403(b) pur- poses. If that’s not the result that Congress intended, it is of course free to amend the statute. We are not. I Way back in 1998, Orestes Hernandez was convicted of par- ticipating in a series of violent crimes—in particula