Whether the First Step Act's sentencing reduction provisions apply to a defendant initially sentenced prior to the FSA's enactment; whose sentence was then vacated by the trial Court and resentenced after the enactment of the FSA

QUESTION PRESENTED The First Step Act (FSA) significantly reduced the mandatory minimum sentences for several federal drug and firearm offenses. First Step Act of 2018, Pub. L. No. 115-391, §§ 401, 403, 1382 Stat. 5194, 5220-5222. Sections 401 and 403 apply to offenses committed after the FSA’s enactment on December 21, 2018, and to “any offense that was committed before the date of enactment * * * if a sentence for the offense has not been imposed as of such date of enactment.” FSA §§ 401(c), 403(b). There is an acknowledged split between the Third, Seventh, and Ninth Circuits and the Fifth and Sixth Circuits. The Third Seventh and Ninth Circuits have determined sections 401(c) and 403(b) of the FSA apply to a post-Act sentencing when the sentence was vacated preenactment. The Fifth and Sixth Circuits have determined 401(c) and 403(b) of the FSA do not apply to a post-Act sentence when that sentence is vacated pre-enactment. The question is presented accordingly: Whether the First Step Act’s sentencing reduction provisions apply to a defendant initially sentenced prior to the FSA’s enactment; whose sentence was then vacated by the trial Court and resentenced after the enactment of the FSA.