Stacking and multiple 18 USC Section 924(c) counts

The issue – whether a pre-2018 sentence on a valid 924(c) charge may be changed where a separate 924(c) count is invalidated – is currently pending in many appeals before the Third Circuit.  Iin United States v. White, No. 10-420-1, 2024 WL 3032891, at *2 (E.D. Pa. June 17, 2024) the district court determined that plenary resentencing on all counts is warranted in the situation presented here, where only one of several 924(c) charges is deemed invalid.  Multiple judges have agreed with the government’s view that resentencing on valid 924(c) charges is not allowed, and those rulings are all currently pending on appeal in the Third Circuit. The cases are:

— United States v. Markwann Gordon, No. 99-348-02, on appeal, No. 24-2582 (3d Cir.).

— United States v. Larry Johnson, No. 94-532-01, on appeal, No. 24-2149 (3d Cir.).

— United States v. Emmanuel Duran, No. 10-605-01, on appeal, No. 24-2356 (3d Cir.).

— United States v. Ortiz, 2022 WL 17325956 (E.D. Pa. Nov. 29, 2022), on appeal, No. 23-1189.

The Supreme Court’s recent decision in Hewitt v. United States, 145 S. Ct. 2165 (2025), that bears on the issue and had not been issued at the time all of the rulings listed above.  In Hewitt, the United States Supreme Court held that Congress chose not to say that Section 403 applied only to those whose sentences “had not been imposed” as of December 21, 2018; such use of the past-perfect tense would more clearly have indicated that anyone whose sentence had been imposed (even if later vacated) would be ineligible for Section 403’s relief. “Rather,” Justice Jackson wrote, “Congress employed the present-perfect tense—thereby requiring evaluation of whether ‘a sentence . . . has . . . been imposed’ upon the defendant” in the first place. Id. at 2171.

Hewitt definitively held that in circumstances where some but not all of the §924(c) counts are vacated pursuant to a §2255 motion, the surviving § 924(c) counts are subject to the FSA mandatory minimum penalties on resentencing. 

Laguzzi Law continues to monitor this issue and these cases to see how they unfold.  For now, any person with multiple §924(c) convictions sentenced before the First Step Act should contact our office as to status of their case/resentencing options.