                                   PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                  No. 19-1930
                 _____________

         UNITED STATES OF AMERICA

                        v.

        RICHARD ANTONIO HODGE, JR.,
                           Appellant

          On Appeal from the District Court
                 of the Virgin Islands
        District Court No. 3-14-cr-00001-001
   District Judge: The Honorable Curtis V. Gomez

             Argued December 9, 2019

Before: SMITH Chief Judge, McKEE, and SHWARTZ,
                  Circuit Judges

             (Filed: January 17, 2020)
Jennifer Blecher [ARGUED]
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
      Counsel for Appellee


Melanie Turnbull
Gabriel J. Vellegas [ARGUED]
Office of Federal Public Defender
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802
       Counsel for Appellant

                _____________________

                      OPINION
                _____________________

SMITH, Chief Judge
        18 U.S.C. § 924(c) criminalizes using, carrying, or
possessing a firearm during the commission of a violent crime.
The First Step Act reduced the mandatory minimum sentence
for first-time offenders who commit multiple § 924(c) counts
charged in the same indictment. The new minimum applies to
defendants convicted before the Act became law if they had

                              2
not yet had a sentence “imposed.” See First Step Act of 2018,
§ 403, Pub. L. No. 115-391, 132 Stat. 5194, 5221-22.

        In 2014, Richard Hodge, Jr. was charged in the District
of the Virgin Islands with three § 924(c) counts after he shot
two armored-vehicle workers and stole $33,500. A jury
convicted Hodge of two § 924(c) counts, along with several
other federal and territorial crimes. 1 In 2015, the District Court
sentenced Hodge to an aggregate 420 months imprisonment on
the two § 924(c) counts—the pre–First Step Act mandatory
minimum for first-time § 924(c) offenders convicted of two
counts involving discharging a firearm—plus another 310
months on the other counts. We affirmed the District Court’s
judgment of sentence on the federal counts, but remanded the
territorial charges with instructions to vacate two territorial
counts and to conduct the “requisite resentencing.” See 870
F.3d 184, 188 (3d Cir. 2017). Before resentencing took place,
the First Step Act became law. The Act amended § 924(c) so
that first-time offenders convicted of two § 924(c) counts
involving discharging a firearm and stemming from the same
indictment now face a 240-month mandatory minimum. 2


1
  Under 48 U.S.C. § 1612(c), the District Court of the Virgin
Islands not only has jurisdiction over federal offenses, but also
has pendent jurisdiction over territorial offenses arising from
the same criminal activity.
2
   More specifically, the First Step Act eliminated §
924(c)(1)(C)’s “stacking” requirement for first-time offenders.
Under either version of § 924(c), a first-time offender
convicted of discharging a firearm faces a 120-month
mandatory minimum on his first § 924(c) count. See §
                                3
       We must decide whether the District Court’s post–First
Step Act modification of Hodge’s territorial sentence allows
Hodge to invoke the reduced § 924(c) mandatory minimum.
Given the limited nature of our remand, the District Court did
not think so, and he declined to disturb Hodge’s federal
sentence. As a matter of decretal interpretation, that was the
correct result. 3 And as a matter of statutory interpretation, we


924(c)(1)(A)(iii). But before the First Step Act, if that offender
was convicted of a second § 924(c) count, he faced an
enhanced consecutive 300-month mandatory recidivist
penalty—even though both counts came from the same
indictment. See § 924(c)(1)(C)(i) (amended 2018) (“In the case
of a second or subsequent conviction under this subsection, the
person shall [] be sentenced to a term of imprisonment of not
less than 25 years . . . .” (emphasis added)); § 924(c)(1)(D)(ii);
see also Deal v. United States, 508 U.S. 129, 132 (1993). After
the First Step Act, when a first-time offender who discharged
a firearm is convicted of multiple § 924(c) counts from the
same indictment, each count carries only the standard 120-
month minimum, run consecutively. See § 924(c)(1)(C)(i) (“In
the case of a violation of this subsection that occurs after a
prior conviction under this subsection has become final, the
person shall [] be sentenced to a term of imprisonment of not
less than 25 years . . . .” (emphasis added)).
3
  Our prior opinion explicitly “affirm[ed] the District Court’s
judgment of conviction and sentence on” Hodge’s federal
charges, including his § 924(c) counts. 870 F.3d at 206. Only
Hodge’s territorial sentence remained at issue on remand. The
jury convicted Hodge of three territorial firearms offenses
arising from the same conduct, but we concluded territorial law
                                4
hold the new § 924(c) mandatory minimum does not apply to
defendants initially sentenced before the First Step Act’s
enactment. We will therefore affirm.

                                 I

       The District Court had jurisdiction under 18 U.S.C. §
3231 and 48 U.S.C. § 1612(c). We have jurisdiction under 28
U.S.C. § 1291. We review statutory interpretation questions de
novo. See Guerrero-Sanchez v. Warden York Cty. Prison, 905
F.3d 208, 213 (3d Cir. 2018).




permitted only one. See id. at 197-99. So we “affirm[ed] the
District Court’s judgment and commitment” on the territorial
charges, “except that we [] remand[ed] to the District Court to
vacate two of the three [territorial firearms] offenses.” Id. at
206. Given this express direction, had the District Court taken-
up Hodge’s call to revisit his federal sentence, it would have
impermissibly “deviate[d] from the mandate issued by an
appellate court.” Briggs v. Pa. R.R. Co., 334 U.S. 304, 306
(1948). See generally Sibbald v. United States, 37 U.S. (12
Pet.) 488, 492 (1838) (“Whatever was before the [appellate]
Court, and is disposed of, is considered as finally settled. The
inferior court is bound by the decree as the law of the case; and
must carry it into execution, according to the mandate. They
cannot vary it, nor examine it for any other purpose than
execution; or give any other or further relief; . . . or intermeddle
with it, further than to settle so much as has been remanded.”).
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                               II

        Hodge argues that any defendant awaiting resentencing
when the First Step Act became law may benefit from the
reduced § 924(c) mandatory minimum. But the First Step Act’s
text and our decision in United States v. Aviles, 938 F.3d 503
(3d Cir. 2019), suggest otherwise. Because the District Court
first sentenced Hodge before the First Step Act became law, he
cannot benefit from its changes to § 924(c). And that’s true
even though the District Court revisited other aspects of his
sentence after the First Step Act’s passage.

                               A

       We start with the statutory text. Recall that when a
statute imposes a newer, more lenient penalty, the change
applies retroactively only if Congress intends it to. See Dorsey
v. United States, 567 U.S. 260, 272 (2012) (citing 1 U.S.C. §
109). In the First Step Act, Congress spoke unequivocally: the
reduced § 924(c) mandatory minimum would apply
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.” § 403(b), 132 Stat. at 5222.

        So the First Step Act conditions the reduced mandatory
minimum’s retroactive application on the imposition of a
sentence—not the sentence, an ultimate sentence, or a final
sentence. That word choice matters. For starters, Congress
knows how to say such things when it wants to. See, e.g., 18
U.S.C. § 3742 (discussing grounds to appeal “an otherwise
final sentence”); cf. Custis v. United States, 511 U.S. 485, 491-
92 (1994) (rejecting a possible reading of a statutory provision
                               6
since Congress specifically provided for that reading in more
specific language elsewhere).

        What’s more, the immediately preceding subsection of
the First Step Act—the provision amending § 924(c)—
discusses sentence finality. See § 403(a), 132 Stat. at 5221-22
(“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.’” (emphasis added)).
But as discussed, the very next subsection limiting that
amendment’s retroactive application focuses only on sentence
imposition. See § 403(b), 132 Stat. at 5222 (“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.” (emphasis added)).

       So for Hodge to win, we would have to equate § 403(b)
with finality even though it makes no mention of finality, and
even though § 403(a) expressly discusses finality. But “[w]e
refrain from concluding here that the differing language in the
two subsections has the same meaning in each.” Russello v.
United States, 464 U.S. 16, 23 (1983). Rather, we conclude the
First Step Act intentionally subjected any defendant who
already had any sentence imposed to the original § 924(c)
mandatory minimum, even if their sentence was subsequently
modified. And so Hodge—who the District Court initially



                                7
sentenced before the First Step Act became law—cannot be the
beneficiary of any clemency intended by the Act. 4

                               B

       And then there is Aviles. That case interprets § 401(c)
of the First Step Act, which similarly limits retroactively
applying a reduced penalty—this time under the Controlled
Substances Act and the Controlled Substances Import and
Export Act—by excluding cases where a sentence was already
imposed. See 938 F.3d at 510. We agreed with the Seventh
Circuit that a sentence is “‘“imposed” . . . within the meaning
of’” the First Step Act once “a sentencing order has been
entered by a district court.” Id. (quoting United States v.
Pierson, 925 F.3d 913, 927-28 (7th Cir. 2019)). The Sixth and
D.C. Circuits have also adopted that position. See Young v.
United States, 943 F.3d 460, 463 (D.C. Cir. 2019); United
States v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019).

       We decline to give the word “impose” in § 403(b) a
different meaning than we gave it in § 401(c). After all,
“identical words used in different parts of the same statute are
generally presumed to have the same meaning.” IBP, Inc. v.
Alvarez, 546 U.S. 21, 34 (2005). So Aviles buttresses our
textual analysis: Hodge cannot leverage the reduced § 924(c)
mandatory minimum on remand because the District Court

4
  Because we resolve only the issue presented, we express no
opinion as to whether § 403 applies to a defendant whose
sentence on § 924(c) counts is vacated and remanded for
resentencing after the Act’s enactment. See Aviles, 938 F.3d at
515 n.8 (leaving this question open).
                               8
already imposed a sentence upon him before the First Step Act
became law. That’s true even though the District Court
modified other aspects of his sentence after passage of the First
Step Act.

                              III

        With his primary argument thwarted by both statutory
text and Aviles, Hodge is left with his back-up request for a
remand under 28 U.S.C. § 2106. Section 2106 allows us to
“affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court” and “remand the cause and direct
the entry of such appropriate judgment, decree, or order . . . as
may be just under the circumstances.” Hodge contends it
would be “unjust” to impose the § 924(c) mandatory minimum
in effect at the time of his original sentencing since “the law
changed drastically” while he awaited resentencing. Appellant
Br. 21.

        We disagree. If anything, fairness considerations
underscore our legal conclusion. After all, “reduction[s] in
criminal penalties” will always “pose difficult line-drawing in
applying the reduction to pending cases.” Pierson, 925 F.3d at
927. But drawing the line at initial-sentence imposition is
preferable to drawing the line at ultimate-sentence imposition.
If we let all defendants awaiting resentencing capitalize on the
First Step Act, we would favor defendants whose appeals—for
whatever reason—took longer to resolve.

      Imagine two § 924(c) defendants sentenced before the
First Step Act who successfully appeal their sentences.
Suppose the first defendant homes-in on a single dispositive
                               9
issue, allowing vacatur and resentencing before the First Step
Act’s passage. But suppose the second defendant complicates
his appeal with multiple yet non-meritorious issues, delaying
resentencing until after the First Step Act passes. The first
defendant would not benefit from the new mandatory
minimum, but the second defendant would. We should not
countenance such a result. Focusing on initial-sentence
imposition avoids that disparity.

                             IV

      For these reasons, we will affirm Hodge’s sentence.




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