PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 20-2493 ____________ UNITED STATES OF AMERICA v. TYRONE MITCHELL, a/k/a Fox, Appellant Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-12-cr-00172-001) District Judge: Honorable Paul S. Diamond Argued on January 11, 2022 Before: AMBRO, BIBAS, and ROTH, Circuit Judges (Opinion filed: June 29, 2022) Peter Goldberger [ARGUED] Pamela A. Wilk 50 Rittenhouse Place Ardmore, PA 19003 Counsel for Appellant Emily McKillip Robert A. Zauzmer [ARGUED] Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellee OPINION OF THE COURT ROTH, Circuit Judge. In 2018, the President signed the First Step Act, bipartisan legislation implementing long-sought-after criminal-justice reform. In this appeal, we must decide how the First Step Act affects Tyrone Mitchell’s sentence for various drug and gun-related offenses in violation of 18 U.S.C. § 924(c)(1). The complication in determining Mitchell’s sentence arises from the fact that, after the Act’s passage, we vacated Mitchell’s sentence and remanded his case for resentencing because we concluded that, when the District Court sentenced Mitchell, it violated his procedural-due- 2 process rights.1 Generally, when Congress passes a statute that imposes a more lenient penalty, the retroactivity of that statute will be explicitly set forth in the statute’s text.2 In this regard, Congress chose to limit the benefits of the First Step Act. The Act applies, prospectively, to all offenses committed after the Act’s enactment but, retroactively, “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 [that] date.”3 We have interpreted this provision twice.4 Both times, however, we declined to decide the full reach of the statute’s retroactivity. Rather, we expressly left open the question: “Whether § 403 applies to a defendant whose sentence on § 924(c) counts is vacated and remanded for resentencing after the Act’s enactment.”5 1 United States v. Mitchell, 944 F.3d 116, 120–22 (3d Cir. 2019). 2 See Dorsey v. United States, 567 U.S. 260, 274 (2012) (citing 1 U.S.C. § 109). 3 § 403(b), 132 Stat. at 5222; see also identical language in Section 401(c) of the First Step Act. 4 United States v. Hodge, 948 F.3d 160, 163 (3d Cir. 2020), in which we held that the new § 924(c) mandatory minimum does not apply to a defendant, initially sentenced before the First Step Act’s enactment, where the defendant’s sentence is later modified after the First Step Act’s enactment. United States v. Aviles, 938 F.3d 503, 510 (3d Cir. 2019), in which we held that under the First Step Act a sentence is imposed when a sentencing order is entered. 5 Hodge, 948 F.3d at 163 n.4 (cleaned up); Aviles, 938 F.3d at 515 n.8. 3 This appeal requires that we answer that question. A jury convicted Tyrone Mitchell of various drug-and- gun-related offenses, including two counts of possession of a firearm in furtherance of a …
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