First Step Act’s Revised 924(c) Penalties Don’t Apply Retroactively

US v Jordan: Jordan was convicted of (among other things) two counts of possessing a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). At sentencing, Jordan made two arguments to seek relief from the mandatory minimum sentences those convictions required. First, he argued that the district court should merge the two charges for sentencing, triggering only one mandatory minimum sentence. Second, he argued that the First Step Act’s revised “stacking” penalties should apply to his case. The district court rejected both arguments and sentenced Jordan to a total of 420 months in prison, including a 60-month term on one gun charge and a 300-month term on the other.

On appeal, the Fourth Circuit affirmed Jordan’s convictions and sentence. As to the merger argument, the court noted that while other courts have accepted the premise of Jordan’s argument – “that the use of a firearm, in the simultaneous commission of two predicate drug trafficking offenses, will not support separate 924(c) convictions and sentences” – the Fourth Circuit had already “squarely rejected this position.” Instead, the Fourth Circuit had previously held that two convictions and sentences may stand “so long as they are based on separate predicate offenses that are not duplicative under a double jeopardy analysis.” As to the First Step Act, the court joined the other Circuits that have held that the plain language of the statute controls and it applies only to offenses where sentences had not yet been imposed at the time the First Step Act was enacted (the Act passed while Jordan’s appeal was pending).