United States District Court, E.D. Michigan, Southern Division
ORDER (1) DENYING DEFENDANT'S MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE (ECF No. 191) AND (2) DENYING
DEFENDANT A CERTIFICATE OF APPEALABILITY
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
February 14, 2017, a jury in this Court convicted Defendant
Shawn Pearson of three counts of Hobbs Act robbery in
violation of 18 U.S.C. § 1951, one count of brandishing
a firearm during and in relation to a Hobbs Act robbery in
violation of 18 U.S.C. § 924(c)(1)(A)(ii), and two
counts of discharging a firearm during and in relation to
Hobbs Act robberies in violation of 18 U.S.C. §
924(c)(1)(A)(iii). The Court subsequently sentenced Pearson
to a term of 58 years in prison. The sentence was comprised
of (1) three 1-year terms on the Hobbs Act robbery
convictions to be served concurrently to one another, (2) a
7-year term on the brandishing a firearm conviction to be
served consecutively to all other counts, and (3) two 25-year
terms on the discharging a firearm counts, each to be served
consecutively to all other counts.
was subject to such a lengthy sentence for two reasons.
First, the federal sentencing statute applicable to Section
924(c) convictions requires that “no term of
imprisonment imposed on a person under this subsection shall
run concurrently with any other term of imprisonment imposed
on the person.” 18 U.S.C. § 924(c)(1)(D)(ii).
Thus, the Court was required to “stack”
Pearson's three Section 924(c) convictions consecutively
to one another and consecutively to all other terms of
Pearson was subject to a sentencing enhancement under 18
U.S.C. § 924(c)(1)(C). At the time of Pearson's
offense conduct and at the time of sentencing, 18 U.S.C.
§ 924(c)(1)(C) provided in relevant part:
In the case of a second or subsequent conviction under this
subsection, the person shall - (i) be sentenced to a term of
imprisonment of not less than 25 years....
that version of the statute, the Court was required to
enhance the sentences for Pearson's second and third
Section 924(c) convictions for discharging a firearm to 25
years on each count because they were “second or
subsequent” to his first Section 924(c) conviction for
brandishing a firearm. And this sentencing enhancement was
mandatory even though all of Pearson's Section 924(c)
convictions arose out of the same indictment and were entered
in the same proceeding. See, e.g., Deal
v. United States, 508 U.S. 129, 113 (1993). As another
Judge on this Court recently explained:
At the time defendant was sentenced, “any [second or]
subsequent § 924(c) conviction [was] punishable by a
statutory mandatory sentence of twenty-five years to run
consecutively with any other counts of conviction.”
United States v. Ervin, 266 Fed.Appx. 428, 435 (6th
Cir. 2008) (alterations added) (internal citations omitted).
And [“]in Deal v. United States, 508 U.S. 129,
113 (1993), the Supreme Court ... held that the
twenty-five-year mandatory minimum for a second or subsequent
conviction attache[d] not only when a defendant [wa]s
convicted of an offense and [wa]s later convicted of another
offense, but also when a defendant [wa]s convicted of
multiple offenses in the same proceeding.[”]
Id. at 135-36. United States v. Washington,
714 F.3d 962, 969-70 (6th Cir. 2013) (alterations added).
Thus, “Deal had interpreted §
924(c)(1)(C) to require penalty stacking when a jury made
sequential, cascading guilt findings on multiple §
924(c) counts within one Indictment, ” United
States v. Havens, 374 F.Supp.3d 628, 632 (E.D. Ky.
2019), and the Court was therefore required to sentence
defendant to a consecutive 300-month term of imprisonment for
his second § 924(c) conviction.
United States v. Robinson, 2019 WL 4463272, at *1
(E.D. Mich. Sept. 18, 2019).
Pearson's conviction and sentencing, Congress passed what
is known as the First Step Act. See Pub. L. No.
115-391, 132 Stat. 5194 (2018). In that Act, among other
things, Congress amended Section 924(c)(1)(C) so that the
sentencing enhancement under that provision would only apply
“where a prior conviction was final.”
Robinson, 2019 WL 4463272, at *2. Relevant here,
Section 403 of the First Step Act provides that:
(a) IN GENERAL.-Section 924(c)(1)(C) of title 18, United
States Code, is amended, in the matter preceding clause (i),
by striking “second or subsequent conviction under this
subsection” and inserting “violation of this
subsection that occurs after a prior conviction under this
subsection has become final”.
(b) 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.
Step Act of 2018, Pub. L. No.115-391, § 403, 132 Stat.
5194, 5221-22 (2018). Through this section, the First Step
Act reversed the holding in Deal that where a
defendant is convicted of multiple Section 924(c) offenses in
the same proceeding, courts must enhance the sentences for
all Section 924(c) convictions beyond the first even if the
defendant was never before convicted of a Section 924(c)
offense. See, e.g., Robinson, 2019
WL 4463272, at ** 1-2.
November 20, 2019, Pearson filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
(See Mot., ECF No. 191.) In the motion, Pearson
argues that based on the passage of the First Step Act, his
sentence is “unlawful and must be vacated.”
(Id., PageID.2149.) More specifically, Pearson
argues that the First Step Act clarifies Congress' intent
that defendants like him who had never before been convicted
of a Section 924(c) offense should not be subject to the
sentencing enhancement included in 18 U.S.C. §
924(c)(1)(C). (See id.)
quoted above, Section 403(b) of the First Step Act states
that Congress' clarification applies only
“if a sentence for the offense has not been imposed as
of [the] enactment [of the First Step Act].” First Step
Act of 2018, Pub. L. No.115-391, § 403(b), 132 Stat.
5194, 5221-22 (2018). Thus, courts have repeatedly held that
where, as here, a defendant had been sentenced prior
to the enactment of the First Step Act, the Act does not
entitle him to a new or reduced sentence. See,
e.g., Robinson, 2019 WL 4463272, at *2
(denying motion for sentence reduction and noting that
“Section 403 [of the First Step Act] makes it clear
that this section applies only to offenses committed before
the Act's December 21, 2018, enactment date ‘if a
sentence for the offense has not been imposed' as of that
date. In the present case, because defendant was sentenced in
October 2002 - more than sixteen years before the First Step
Act went into effect - § 403 is inapplicable and has no
effect on his sentence”); United States v.
Rondon, 2019 WL 1060813, at *2 (M.D. Fla. Mar. 6, 2019)
(dismissing motion to vacate sentence and holding that
“a prisoner sentenced before enactment of the First
Step Act is not entitled to the retroactive application of
the changes to a sentence under Section 924(c)”);
Brown v. Antonelli, 2019 WL 2358977, at *2 (D.S.C.
June 4, 2019) (“§ 403(b) of the First Step Act
explicitly states, [‘]this section, and the amendments