Burnham & Gorokhov Client Earns Fourth Circuit Voluntary Remand on Stacked 924(c) Charges

Last week, the government asked for—and the Fourth Circuit granted—a voluntary remand in United States v. Scott, No. 21-4532 (4th Cir. Sep. 23, 2022).

Ten years ago, Mr. Scott was tried and convicted on multiple counts and sentenced to 100 years imprisonment. His sentence was so long because he was convicted of four firearm offenses under 18 U.S.C. § 924(c). This is an enhancement count: adding mandatory additional time to a sentence for offenses involving firearms. At the time, the law required the district court to add 7 years for a defendant’s first § 924(c) offense and 25 years if the defendant had previously been convicted under § 924(c). Mr. Scott, who had never before been convicted under § 924(c), was sentenced to 7 years for one count and 25 years for each additional count. These sentences were stacked onto the end of the 18 years Mr. Scott received for his principal offenses.

Spot the problem? How could the additional time for a second § 924(c) deter any defendants, if they would receive the stacked sentence for having two counts in a first offense? If you think that is crazy, a bipartisan Congress agreed and passed the First Step Act in 2018. Part of this comprehensive criminal justice reform package made it clear that multiple § 924(c) convictions would be treated as a first offense. The act was retroactive, meaning anyone whose sentence “has not been imposed as of” December 21, 2018, should be sentenced under the new statute.

In the meantime, Mr. Scott challenged one of his § 924(c) and succeeded in having his sentence vacated. Under standard sentencing law, a vacated sentence is a legal nullity and judges approach resentencing anew, as if for the first time. This meant, and several Circuits had already agreed, that Mr. Scott’s remaining three § 924(c) counts should have been sentenced under the new law—7 years for each.

At the time, the government and the district court thought differently. At resentencing, Mr. Scott received 75 years: 18 for the underlying offense, 7 for the first § 924(c) count, and 25 years for the two remaining “subsequent” § 924(c) counts.

Mr. Scott appealed, arguing that his previous sentence was null and void and that the district court should have resentenced him under the First Step Act. The issue was hotly briefed by both sides. Then, last week, the government changed its tune.

Similar cases had been popping up across the country. In the time since Mr. Scott filed his appeal, the Ninth and Third Circuit had joined the chorus agreeing that the provisions of the act applied when a sentence was vacated. Seeing the writing on the walls (or more accurately in the federal reporter), the Solicitor General reexamined the government’s position and took the side of defendants and courts across the country. The federal government now agrees that the provisions of the FSA apply where a defendant’s original sentence was vacated.

This is a tremendous victory for Mr. Scott and for the defense bar. Mr. Scott’s case will be remanded to the district court for resentencing under the provisions of the FSA.

Mr. Scott was represented by Eugene Gorokhov, former associate Jonathan Knowles, and current associate Michael T. Collins.

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