UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30183 Plaintiff-Appellee, D.C. Nos. v. 2:96-cr-00257-WFN-1 2:96-cr-00257-WFN VERNE JAY MERRELL, AKA Thomas C. James, AKA Jay, AKA Carl Avery Martell, AKA Jay Merrell, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-30189 Plaintiff-Appellee, D.C. No. v. 2:96-cr-00259-WFN-1 ROBERT SHERMAN BERRY, AKA Jim Preston, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 21-30043 Plaintiff-Appellee, D.C. No. v. 2:96-cr-00258-WFN-1 CHARLES HARRISON BARBEE, Defendant-Appellant. OPINION 2 UNITED STATES V. MERRELL

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted April 12, 2022 Seattle, Washington

Filed June 10, 2022

Before: Danny J. Boggs, * Andrew D. Hurwitz, and Jennifer Sung, Circuit Judges.

Opinion by Judge Hurwitz; Dissent by Judge Boggs

SUMMARY **

Criminal Law

In three defendants’ consolidated appeals, the panel (1) vacated the sentences imposed at resentencing on two 18 U.S.C. § 924(c) counts that remained after the district court—in light of United States v. Davis, 139 S. Ct. 2319 (2019)—had granted 28 U.S.C. § 2255 relief and vacated the defendants’ convictions on two other § 924(c) counts; and (2) remanded for resentencing.

* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MERRELL 3

The panel held that the version of 18 U.S.C. § 924(c)(1) that was amended by the First Step Act of 2018, and not the original version of § 924(c)(1), applies at post-Act resentencing of defendants whose sentences were imposed before the Act’s passage and vacated. In so holding, the panel interpreted § 403(b) of the Act, which provides that the statute applies 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.” The panel held that because vacatur of the prior sentences here wiped the slate clean, a sentence had not been imposed for purposes of § 403(b) at the time of resentencing. The panel wrote that the most reasonable reading of § 403(b) is that “a sentence” means an existing valid sentence, not a prior valid one; and that the vacated sentence—a legal nullity—cannot form the legal predicate for the exclusion from the application of the First Step Act, which Congress expressly made retroactive under § 403(b).

The panel rejected the defendants’ other arguments in a concurrently filed memorandum disposition.

Dissenting, Sixth Circuit Judge Boggs would hold that § 403(b) does not apply retroactively to defendants who were sentenced prior to December 21, 2018, even if such a sentence was subsequently vacated. He wrote that instead of applying the words of the statute to these appellants, the majority substitutes its theory of what Congress might have meant. 4 UNITED STATES V. MERRELL

COUNSEL Zachary L. Ayers (argued) and Walter L. Ayers, Ayers Law Firm P.L.L.C., Spokane, Washington, for Defendant- Appellant Robert Sherman Berry. Mark E. Vovos (argued), Mark E. Vovos P.S., Spokane, Washington, fo