The Supreme Court has agreed to consider whether three offenders dubbed the “Scarecrow Bandits,” whose crimes predate a Trump-era criminal justice reform law, should benefit from the law’s lower mandatory minimum sentences.
The nickname for the individuals originated with FBI agents who said during early robberies that the offenders dressed in loose shirts and floppy hats.
The First Step Act, a bipartisan measure approved by Congress and signed by President Donald Trump in 2018, reformed aspects of the criminal justice system, making it easier for the courts to reduce penalties for certain nonviolent offenders.
The legal issue here is whether the sentence reductions prescribed by the statute apply to defendants who were sentenced before the law was created but later had their sentences vacated and were resentenced after the law came into force.
The justices granted the petitions for certiorari, or review, in Hewitt v. United States and Duffey v. United States in an unsigned order on July 2.
The justices ordered the cases to be heard together. No justices dissented from the order, and the court didn’t explain its decision. At least four of the nine justices must vote to grant a petition for it to move forward to the oral argument stage.
According to court documents, the three petitioners—Tony R. Hewitt, Corey Deyon Duffey, and Jarvis Dupree Ross—entered into a conspiracy to commit several bank robberies in 2008 in the Dallas-Fort Worth area of Texas. All three were charged with multiple counts under Section 924(c) of Title 18 of the U.S. Code for using or carrying a firearm while committing a “crime of violence or drug trafficking crime.”
A first offense under Section 924(c) leads to a mandatory sentence of at least five years in prison. Additional convictions result in a mandatory sentence of 25 years.
When criminal defendants are sentenced, the terms of imprisonment often run “concurrently” with other sentences, meaning that they run simultaneously with the other sentences. However, sentences under Section 924(c) are “stacked,” which means that they must run consecutively—or back-to-back—and not “concurrently with any other term of imprisonment.”
Section 403 of the First Step Act amended Section 924(c) to make it clear that the 25-year mandatory minimum only applies for violations that take place after a prior 924(c) conviction “has become final.” Put another way, the 25-year mandatory minimum was no longer deemed to apply to multiple counts of 924(c) convictions.
This means that “first-time offenders receive only section 924(c)’s consecutive five-year minimum sentences—a difference of two decades per count,” according to court documents.
The federal district court imposed a 355-year term of imprisonment on Mr. Hewitt, most of which was related to Section 924(c) counts. The U.S. Court of Appeals for the Fifth Circuit reversed the convictions in part and nullified his sentence because an error had been made somewhere in the process. The case returned to the district court, which resentenced him to 305 years. The circuit court affirmed the new sentence.
In 2019, the Supreme Court held in United States v. Davis that the “crime of violence” language in Section 924(c) was unconstitutionally vague, which “eliminated conspiracy-based charges as predicates necessary to support convictions” under the section.
A predicate offense is a crime that is considered to be a component of a larger criminal scheme. In some cases, a predicate offense is committed to raise money to be used for subsequent unlawful activities.
Because several of Mr. Hewitt’s convictions “were predicated on conspiracy to commit bank robbery, and in light of” the Davis ruling, he sought authorization to file what’s called a 2255 motion to attack his sentence, he said in his petition. The Fifth Circuit allowed the filing and the district court agreed to hear the motion.
Before the district court, he raised objections to the presentencing report, making the argument that Section 403 should apply in his case. The government initially opposed his objections but later in the proceeding changed course.
Despite the two sides agreeing on this point, the district court rejected the argument, finding that Section 403 didn’t apply. Mr. Hewitt was resentenced to 105 years for his Section 924(c) convictions.
Although the Fifth Circuit upheld the ruling, it acknowledged that the Section 403 issue “vexed and split” the courts of appeal.
However, the circuit court held that “Congress unambiguously drew the line for the First Step Act’s application based on the date a sentence was imposed.”
Mr. Hewitt argued that the Fifth Circuit was wrong to hold that Section 403 did not apply to his case.
Solicitor General Elizabeth Prelogar opposed the petition in a brief filed with the court.
One of her arguments was that there was no need for the Supreme Court to take up the case “because Congress is currently considering legislation that would permit Section 403 of the First Step Act … to be applied retroactively to defendants sentenced before the Act’s enactment.”
Mr. Hewitt responded in a June 3 reply brief, saying the existence of a pending bill in Congress that would implement retroactivity was not persuasive.
The proposed First Step Implementation Act, introduced by Sen. Dick Durbin (D-Ill.) in April 2023, has not since then “received so much as a committee hearing, let alone has it been voted out of committee, debated on the chamber floor, voted upon by the full Senate, or moved to the House.”
It is likely to die in a few months when the current Congress leaves office.
“And it would be manifestly unjust to allow continued misapplication of a law that has been enacted out of speculative concern for a bill that never will be,” he said.
If the decision at issue “is left to stand, untold numbers of individuals will continue to be denied often decades-long sentence reductions to which they are entitled by law,” Mr. Hewitt wrote.
The Supreme Court is expected to hear the appeals of the three offenders in its new term that begins in October.
This article by Matthew Vadum appeared July 6, 2024, in The Epoch Times. It was updated July 7, 2024.