UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4618

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RAYCO BETHEA,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00430-JFA-11)

Argued: October 30, 2020 Decided: January 21, 2021

Before GREGORY, Chief Judge, FLOYD, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by unpublished opinion. Judge Floyd wrote the opinion in which Chief Judge Gregory joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Andrew Mackenzie, BARRETT MACKENZIE, Greenville, South Carolina, for Appellant. Andrew Robert de Holl, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Peter M. McCoy, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. FLOYD, Circuit Judge:

Defendant-Appellant Rayco Bethea appeals from the imposition of a mandatory

minimum sentence of life imprisonment without release pursuant to

(b)(1)(A), 846. Bethea was originally sentenced in 2015, but the district court

vacated and reimposed his judgment in 2019 to allow Bethea to file a direct appeal. Bethea

now argues that amendments to § 841 made by the First Step Act of 2018 should have

applied to the district court’s reentry of judgment following the vacatur of his 2015

sentence. We agree.

I.

In June 2014, a federal grand jury indicted Bethea for conspiracy to distribute

cocaine in excess of five kilograms and cocaine base in excess of 280 grams pursuant to

the Controlled Substances Act (CSA),

(a)(1), (b)(1)(A), and

. 1 At that time, the CSA carried specific, enhanced sentences for individuals with

prior felony drug convictions who violated these provisions. § 841(b)(1)(A) (2015)

(amended Dec. 21, 2018). Importantly, individuals with two or more prior felony drug

convictions faced a mandatory minimum sentence of “life imprisonment without release.”

Id. (emphasis added).

1 Section 841(a)(1) criminalizes the distribution of controlled substances. Section 841(b)(1)(A) then sets forth sentencing ranges for the distribution of five kilograms or more of cocaine or 280 grams or more of cocaine base. Section 846 criminalizes and sets forth the same sentencing ranges for conspiring to engage in this conduct.

2 Bethea suffered from kidney disease, and he was released on bail in November 2014

in the hope that he would receive a kidney donation while awaiting trial. In 2015, the

government filed an Information pursuant to

declaring its intent to seek

an enhanced sentence based on Bethea’s three prior drug convictions. 2 Bethea and the

government ultimately reached a plea agreement. Bethea agreed to plead guilty to the

conspiracy charge, cooperate with the government, follow all state and federal laws, and

comply with his bond requirements. Bethea also agreed to partially waive his appellate

rights. Specifically:

[Bethea], in exchange for the concessions made by the Government in this Plea Agreement, waive[d] the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceedings under

. (This waiver does not apply to claims of ineffective assistance of counsel or prosecutorial misconduct raised pursuant to

.)

J.A. 39. In exchange, the government agreed to file an amended Information dismissing

two of Bethea’s § 851 predicate convictions. This would have reduced Bethea’s mandatory

minimum sentence to twenty years. § 841(b)(1)(A) (2015). The government also agreed

to seek a downward departure from that mandatory minimum sentence.

In March 2015, Bethea formally pled guilty to conspiracy to distribute cocaine in

excess of five kilograms and cocaine base in excess of 280 grams. During his plea

2 Bethea contends that two of those predicates should only count as one prior conviction under § 841(b)(1)(A), but he stipulated to the Information’s accuracy in his plea agreement. We take no position on whether the Information accurately set forth three valid predicates under the 2015 version of the statute. Today, enhanced sentences only apply to individuals with “prior conviction[s] for a serious drug felony.” § 841(b)(1)(A) (emphasis added).

3 colloquy, Bethea made clear that he understood he was partially waiving his appellate

rights. Bethea remained on bond pending sentencing because of his kidney disease. J.A.

65.

At Bethea’s August 21, 2015 sentencing hearing, the government informed the

district court that Bethea had continued to prepare cocaine base after his plea hearing. The

government therefore withdrew its prior agreement to dismiss two of Bethea’s § 851

predicates. Describing the case as “one of the saddest cases I’ve had in a long time,” J.A.

78, the district court concluded that it was obligated to sentence Bethea to the “statutorily

required” mandatory minimum sentence of life imprisonment without release. J.A. 84. 3

Addressing Bethea, the district court observed that “there’s a lot of movement in

Washington to do away with these mandatory sentences and if that ever happens you may

benefit from it.” J.A. 84. The district court also informed Bethea that—notwithstanding

his appeal waiver—he “should discuss with [counsel] whether [he] ha[d] any grounds for

appeal and also whether an appeal would be in [his] best interest or not.” J.A. 87.

No direct appeal was ever filed. Approximately one year after sentencing, Bethea

filed a pro se motion under

asserting multiple claims of ineffective

assistance by his trial counsel, including failure to file an appeal. Notably, while Bethea’s

§ 2255 motion was pending, Congress enacted the First Step Act of 2018 (FSA), which—

3 The district court never explicitly stated it was sentencing Bethea to life imprisonment without release but made clear that it was imposing the required mandatory minimum sentence for individuals with two prior felony drug convictions under § 841(b)(1)(A). Therefore, it could only have sentenced him to “life imprisonment without release.” § 841(b)(1)(A) (2015).

4 among other reforms—reduced criminal sentences under § 841(b)(1)(A). Pub. L. No. 115-

391, § 401,

, 5220–21. In 2019, the district court determined that Bethea’s

ineffective assistance of counsel claim could not be resolved without an evidentiary

hearing. Bethea was being held in a federal prison in Missouri and declined to waive his

appearance at that hearing. Instead of transporting Bethea, the district court decided to

simply vacate its original judgment and reimpose that judgment with a new date to restart

the deadline for Bethea to appeal his sentence. The district court made no other changes

to Bethea’s sentence. Bethea’s other claims were dismissed without prejudice. The district

court also directed the clerk to enter a notice of appeal on Bethea’s behalf, which brought

the case before this Court for the first time.

II.

While this appeal was pending, the government filed a motion to dismiss,

contending that Bethea’s claims are barred by the terms of his appeal waiver. We deferred

ruling on that motion until after hearing Bethea’s appeal on the merits. We now conclude

that the waiver does not entirely bar Bethea’s appeal, but it does curtail the scope of our

review.

A.

Typically, “a defendant who pleads guilty, and expressly waives the statutory right

to raise objections to a sentence, may not then seek to appeal the very sentence which itself

was part of the agreement.” United States v. Wiggins,

(4th Cir. 1990). We

5 examine the enforceability of an appeal waiver de novo, asking whether it is valid and

covers the issue on appeal. United States v. Blick,

, 167–68 (4th Cir. 2005).

For his appeal waiver to be valid, Bethea must have “knowingly and intelligently

agreed to waive the right to appeal” as part of his plea.

. Bethea does not contest

that he knowingly and intelligently agreed to partially waive his appellate rights, so his

appeal must be dismissed if it is covered by the scope of the waiver. Bethea’s challenge to

his sentence is plainly covered by the waiver’s text. However, defendants may not bargain

away their right to contest a small category of fundamental errors that—by definition—fall

outside the waiver’s scope. See United States v. Johnson,

(4th Cir.

2005). For instance, defendants may not waive their right to contest an illegal sentence.

United States v. Thornsbury,

(4th Cir. 2012). Not all sentencing errors

create an illegal sentence, even if they increase the sentencing range; to qualify, the

sentence must be “beyond the authority of the district court to impose.”

(citing United

States v. Broughton-Jones,

(4th Cir. 1995)). Thus, we consider whether

Bethea’s appeal presents a question of sentence illegality rather than mere sentencing error.

B.

In both his opening brief and response to the government’s motion to dismiss,

Bethea contends that the FSA’s amendments to § 841(b)(1)(A) rendered his sentence

illegal when the district court vacated his 2015 sentence and reimposed judgment

containing that same sentence. The government argues that the FSA’s amendments to

6 § 841(b)(1)(A) do not apply to Bethea’s 2019 corrected sentence. 4 Generally, the validity

of a plea waiver is not disturbed by a subsequent change in law. See Blick, 408 F.3d at

169–73; United States v. Archie,

, 221–23 (4th Cir. 2014). However, this

Court has held that when a change in law impacts sentence legality and is made retroactive

to the time that sentence was imposed, a sentence made illegal by that change is not subject

to waiver. See United States v. Cornette,

, 209–10 (4th Cir. 2019). Bethea

argues that the FSA’s amendments to § 841(b)(1)(A) applied at the time his sentence was

corrected by the district court. Therefore, he does not seek to void an “otherwise valid

appeal waiver” through the post-hoc application of a “non-retroactive change” in the

sentencing structure. Id. at 210. He instead argues that his actual sentence was in excess

of § 841(b)(1)(A) at the time it was imposed. Accordingly, to determine if the FSA made

Bethea’s sentence illegal, we must resolve whether the FSA applied to his 2019 corrected

sentence.

Section 401(c) of the FSA makes its amendments to § 841(b)(1)(A) applicable only

under certain circumstances. Specifically, that provision reads:

APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this section [to § 841(b)(1)(A)], 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.

FSA § 401(c), 132 Stat. at 5221 (emphasis added). The government contends that, because

Bethea was originally sentenced in 2015, “a sentence” was imposed prior to the FSA’s

4 The government makes this argument on the merits, but as we explain below, this claim is also essential to resolving the validity of Bethea’s appeal waiver.

7 enactment and its amendments to § 841(b)(1)(A) do not apply to his 2019 corrected

sentence. We disagree, because we conclude that the text, structure, and purpose of the

Act suggest this applicability provision covers Bethea’s 2019 sentence.

1.

This Court has, on two occasions, considered this statutory language and held that

it does not cover individuals challenging a sentence on direct appeal who were sentenced

before the FSA’s enactment. See United States v. Brunson,

, 335–36 (4th Cir.

2020); United States v. Jordan,

, 171–74 (4th Cir. 2020). 5 The Third, Sixth,

and Seventh Circuits have split on whether this language covers a sentence imposed before

the FSA’s enactment that is subsequently vacated. The Third Circuit has held that so long

as any initial sentence was ever imposed prior to the FSA’s enactment—notwithstanding

its later vacatur—this statutory language precludes application of the FSA at any future

resentencing. See United States v. Hodge,

(3d Cir. 2020). By contrast,

the Sixth and Seventh Circuits have held that individuals whose sentences were vacated

before enactment of the FSA and who were still awaiting resentencing on the date of

enactment have not had a sentence imposed as of the enactment date. United States v.

5 We note that the FSA contains several applicability provisions that make certain sentencing reforms more broadly applicable than others. Two applicability provisions— Sections 401(c) and 403(b)—use identical language and circuit courts have construed them to have the same meaning. See, e.g., Brunson,

. This opinion assumes both provisions have the same meaning and therefore does not distinguish case law based on which of those two sections is at issue.

8 Henry, --- F.3d ---,

, at *30–32 (6th Cir. 2020); United States

v. Uriarte,

(7th Cir. 2020). However, both courts have left open whether

a sentence that was vacated after enactment of the FSA would satisfy the language of this

applicability provision. Henry,

, at *17 & n.2; Uriarte,

& n.3. 6

This Court has not previously considered how vacated sentences fit within the

meaning of Section 401(c). In this case, the district court vacated Bethea’s 2015 sentence

and reimposed its judgment in 2019 for the purpose of correcting Bethea’s sentencing date.

We conclude that Bethea’s sentence is best understood as “imposed” for purposes of the

FSA on the date of its reimposition, because the district court’s vacatur rendered his 2015

sentence a legal nullity. Bethea’s sentence accordingly falls within the ambit of Section

401(c), because he is a pre-FSA offender serving a post-FSA sentence. The FSA’s

amendments to § 841(b)(1)(A) therefore applied to his corrected sentence.

The government argues that the plain language of Section 401(c) favors the opposite

conclusion. In so doing, it emphasizes Section 401(c)’s use of an indefinite article to ask

whether “a sentence” was imposed before the FSA’s enactment, rather than “the sentence.”

Cf. Hodge,

. In effect, the government asks us to determine that Congress

intended the phrase “a sentence” to mean “any pre-FSA sentence.”

6 Multiple circuits acknowledge this is still an open question. See United States v. Voris,

, 875 n.12 (9th Cir. 2020); United States v. Gomez,

, 177 n.8 (5th Cir. 2020); United States v. Brown,

, 46 n.1 (2d Cir. 2019).

9 But it does not follow from Congress’s use of an indefinite article that “a sentence”

means any sentence, even if later vacated. As the Seventh Circuit has persuasively

reasoned, the government’s construction places far too much emphasis on the use of an

indefinite article. See Uriarte,

. Although true that Congress did not use a

phrase such as “the sentence,” “the ultimate sentence,” or “the final sentence”—any one of

which would suggest courts look to the latest sentence imposed—neither did it use a phrase

such as “any sentence,” “the first sentence,” “the initial sentence,” or “the original

sentence”—any one of which would be more suggestive of the government’s proposed

interpretation. See id.; Henry,

, at *18. Indeed, Congress

made Section 401 applicable to “any offense” where “a sentence . . . has not been imposed.”

See FSA § 401(c), 132 Stat. at 5221. “Had Congress intended the phrase ‘a sentence’ to

convey a very broad meaning, it could have used the word ‘any,’ as it did earlier in the

same sentence . . . .” Uriarte,

(discussing the identically worded Section

403(b)).

This case ultimately turns on whether a pre-FSA sentence that is vacated after

enactment “has not been imposed as of such date of enactment.” FSA § 401(c), 132 Stat.

at 5221. 7 The government argues that the past tense construction of Section 401(c)—that

is, its requirement that a sentence “has not been imposed”—suggests that this provision

asks the purely factual question of whether a district court ever imposed a sentence before

7 The meaning of this clause has been left open by this Court. See Jordan,

n.6 (“[W]e need not address today the precise moment at which a district court sentence is ‘imposed’ for purposes of [the identically worded] § 403(b) . . . .”).

10 enactment. Ultimately, the government reads the FSA to distinguish individuals “initially

sentenced before December 21, 2018[] from those who were not.” Resp. Br. at 18

(emphasis added).

We decline to draw this inference from the verb tense used in the Act. Instead, we

construe the requirement that a sentence “has not been imposed as of such date of

enactment,” FSA § 401(c), 132 Stat. at 5221, to merely preclude the use of the FSA to

challenge a pre-FSA sentence on direct appeal. Our prior case law makes clear that district

courts, not appellate courts, impose sentences, and therefore “a sentence” on appeal has

already been “imposed” for purposes of the FSA. Brunson, 968 F.3d at 335–36; Jordan,

. This construction is sensible: it gives individuals the benefit of the FSA

when being sentenced but does not permit appellate courts to disturb sentences validly

imposed by the district court under the earlier statutory scheme. But this describes how we

understand only a sentence pending on appeal, not a sentence vacated before ever reaching

appeal. See Jordan,

(“[I]n common usage in federal sentencing law, a

sentence is ‘imposed’ when the district court announces it, not when appeals are

exhausted.”).

We do not read Section 401(c) to further prohibit application of the FSA to

individuals whose sentences have been vacated after the FSA’s enactment. “We must

‘assume that our elected representatives, like other citizens, know the law.’” Smith v.

Regan,

(4th Cir. 1988) (quoting Cannon v. Univ. of Chi.,

, 696–

97 (1979)). And “[n]othing in the text of the statute suggests that Congress intended to

11 create an exception to the ordinary effect of the vacatur of a sentence.” Uriarte,

.

In this case, the district court’s vacatur and reentry of judgment nullified Bethea’s

original sentence such that a sentence cannot legally be said to have been imposed until

2019. As this Court explained in United States v. Hadden, § 2255 contemplates specific

types of remedies if a criminal judgment is infirm.

, 667–68 (2007). “[T]he

end result of a successful § 2255 proceeding must be the vacatur” of a sentence followed

by a remedy (1) granting release, (2) granting a new trial, or (3) granting “a new sentence,

be it imposed by (a) a resentencing or (b) a corrected sentence.” Id. at 661 (emphasis

added). A corrected sentence “is an entirely new sentence,” which permits a direct appeal

from its imposition as part of the individual’s original, criminal case. Id. at 664. And a

“‘new’ sentence” is imposed by correction even if that correction merely changes the date

to permit appeal. Id. at 661 n.9.

The general, legal understanding of vacatur is that it renders the original judgment

null and void. See United States v. Muhammad,

(4th Cir. 2007) (“[W]e

vacated [the appellant’s] original sentence and remanded for resentencing . . . . As a result,

the prior sentencing proceedings were nullified . . . .”); United States v. Martin,

(4th Cir. 2004) (“‘Vacate’ means ‘[t]o render an act void; as, to vacate an entry

of record, or a judgment.’” (alteration in original) (quoting Black’s Law Dictionary 1548

(6th ed. 1990)); accord Pepper v. United States,

(2011) (noting that

12 vacatur of a sentence “wipe[s] the slate clean”). 8 Therefore, the district court’s action

nullified the judgment containing the original sentence and then reimposed judgment after

the FSA’s passage. And it necessarily did so for the precise reason of setting the date of

sentencing in 2019 to permit Bethea’s direct appeal as if the 2015 judgment had never

occurred. This conclusion is reinforced by the fact that, even had he wanted to, Bethea

could not appeal from the original judgment.

We recognize that the Sixth and Seventh Circuits have not decided whether this

statutory language covers individuals whose sentences are vacated after enactment,

because those individuals would have been sentenced on the date of enactment. Henry,

, at *17 & n.2; Uriarte,

& n.3. But if

Bethea’s vacated sentence is a legal nullity, it matters not when that vacatur occurred,

because his only legally effective sentence was imposed after the FSA’s enactment.

Therefore, the requirement that “a sentence for the offense [have] not been imposed

as of such date of enactment,” FSA § 401(c), 132 Stat. at 5221 (emphasis added), is best

understood to preclude an appellant from using the FSA to challenge a pre-FSA sentence

on appeal—a reading that comports with our prior case law. See Brunson,

.

Indeed, Congress “elected not to reopen sentences in place on the date of enactment.”

8 To appreciate the legal effect of vacatur on Bethea’s original sentence, consider the Fifth Circuit’s alternative approach to remedying ineffective assistance of counsel claims. In United States v. West,

(5th Cir. 2001), the court instructed that the proper procedure for permitting an out-of-time appeal is to dismiss the § 2255 petition and simply “re-enter[]” judgment without vacating the original judgment. By doing so, individuals may appeal from the district court’s “earlier, underlying criminal judgment.” Id. at 458–59 (emphasis omitted).

13 Uriarte,

. But when individuals, like Bethea, have their original sentence

nullified by the district court, it is not the FSA that reopens their sentence. Any new

sentence imposed after enactment must comply with the FSA’s requirements. Congress

designed Section 401 to reduce mandatory drug sentences. This Court’s construction of

Section 401(c) gives effect to the congressional intent that “its new policy determination

effectively control[s] every sentence after” the date of enactment. See

(emphasis

added). 9

2.

The government next contends that the structure of the FSA supports its reading,

because the applicability provisions for other sentencing reforms make use of different

language. In particular, the government examines the following applicability provisions.

Section 401(a)(2), (b) makes certain enhancements applicable “after a prior conviction for

a serious drug felony or serious violent felony has become final.” 132 Stat. at 5220–21.

9 Senators Richard Durbin, Charles Grassley, and Cory Booker—the FSA’s lead sponsors and the “principal drafters” of Section 401—recently submitted an amici curiae brief in the Ninth Circuit Court of Appeals arguing that Congress intended Section 401(c) to capture both “individuals facing an initial sentencing proceeding and individuals facing resentencing following vacatur of a prior sentence.” Brief for Amici Curiae United States Senators Richard J. Durbin, Charles E. Grassley, and Cory A. Booker in Support of Defendant-Appellant and Vacatur at 2, United States v. Mapuatuli (9th Cir. May 12, 2020) (No. 19-10233). Accordingly, “[a]lthough Congress did not intend that Section 401 serve as a vehicle for reopening or vacating sentences,” id. at 10, neither did it “intend[] to give legal effect to sentences that otherwise are void,” id. at 3. See also Henry,

, at *22–23 (describing same and noting that this brief “clearly shows Congress’s intent to apply [§ 401] to persons whose sentences were vacated after the law’s enactment.” (emphasis added)).

14 Section 402(b) asks whether a “conviction [was] entered on or after the date of enactment.”

Id. at 5221. And Section 404(b) makes certain amendments retroactively applicable “as if

[they] . . . were in effect at the time the covered offense was committed.” Id. at 5222.

“Where Congress includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed that Congress acts

intentionally . . . .” Russello v. United States,

(1983). The government

argues that Section 404(b) demonstrates that Congress knows how to make amendments

retroactive to all cases. And Section 401(a)(2), (b) demonstrates that Congress knows how

to make certain consequences applicable only to final sentences. True, but Congress’s use

of this language does not prove the government’s conclusion: that Section 401(c) can only

be read to “dr[aw] a line separating pre-Act offenders who were initially sentenced before

December 21, 2018[] from those who were not.” Resp. Br. at 18.

Again, the government’s argument runs into the plain language of the Act: had

Congress intended to draw the line at individuals “initially sentenced” before the FSA’s

enactment, it surely could have said so. And Section 401(c) can be read consistently with

these other applicability provisions without requiring the government’s proposed

interpretation. Section 401(c), as we construe it, covers Bethea’s post-enactment sentence

without requiring application of the FSA to any case pending on appeal or the reopening

of finalized cases. Whereas Section 401(a)(2) applies after a sentence is final and Section

404(b) permits the reopening of finalized sentences, Section 401(c) applies only to

sentences imposed after enactment. It therefore captures certain pre-Act conduct—unlike

Section 402(b)—while retaining a limiting principle lacking in Sections 401(a)(2) and

15 404(b): an appellant may not make use of Section 401’s amendments to § 841(b)(1)(A) for

the first time on appeal to disturb an otherwise valid sentence under the earlier version of

the statute. 10

3.

The government finally contends that this construction would produce inequitable

results. For instance, two co-defendants could be sentenced for the same offense. The first

defendant may win a resentencing and then receive that sentence prior to the enactment of

the FSA. The second defendant may—through a procedural quirk—win a resentencing

after the FSA is enacted. According to the government, Congress could not have intended

that second defendant to receive the windfall of a reduced sentence.

“[D]isparities, reflecting a line-drawing effort, will exist whenever Congress enacts

a new law changing sentences.” Dorsey v. United States,

(2012). In

this case, Congress drew that line against the backdrop of how courts understand the legal

10 The government also argues that the savings statute,

, precludes our interpretation of Section 401(c). Section 109, enacted prior to the FSA, provides that “[t]he repeal of any statute shall not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the repealing Act shall so expressly provide.”

However, Section 401(c) explicitly applies to individuals whose conduct predated its enactment so long as no sentence “has . . . been imposed as of such date of enactment.” FSA § 401(c), 132 Stat. at 5221. This provision is thus a clear exception to the general rule codified in the savings statute. See Uriarte,

. And as our analysis above makes clear, the FSA’s “language, structure, and basic objectives” all support the conclusion that Section 401(c) covers Bethea’s sentence. See United States v. Ward,

(4th Cir. 2014) (quoting Dorsey v. United States,

(2012)).

16 effect of vacatur. We will not read the otherwise plain import of the statute to exclude

Bethea from a sentence in keeping with congressional intent simply because that sentence

is not available to some other defendant.

* * *

Having determined the FSA’s amendments to § 841(b)(1)(A) applied to Bethea’s

2019 corrected sentence, we must still determine whether those amendments rendered his

sentence illegal. The government contends that even after the FSA was enacted,

§ 841(b)(1)(A) still contained a maximum sentence of life imprisonment. Accordingly,

even if the FSA applied to his 2019 corrected sentence, Bethea was still sentenced within

the statutory maximum. The government is correct that Bethea’s waiver bars consideration

of whether the district court was required to impose a different minimum sentence in 2019.

See United States v. Copeland,

, 529–30 (4th Cir. 2013) (holding that appeal

was barred by waiver when challenge implicated only mandatory minimum sentence). But

Bethea’s sentence of life imprisonment without release—which was the mandatory

minimum sentence in 2015—was no longer included in the text of § 841 in 2019—which

only permitted a maximum sentence of “life imprisonment.” Compare § 841(b)(1)(A)

(2015), with § 841(b)(1)(A) (2019). We conclude that this change in the statutory language

implicates not just the minimum sentence Bethea could have received, but also the

maximum sentence. We therefore turn to the merits of whether the district court erred by

sentencing Bethea to life imprisonment without release rather than life imprisonment.

17 III.

A.

Typically, this Court examines the substantive and procedural reasonableness of a

sentence, United States v. Mendoza-Mendoza,

(4th Cir. 2010), but the

sentence from which Bethea appeals was imposed as a remedy following his § 2255

motion. We review § 2255 remedial relief in the form of a corrected sentence for abuse of

discretion. Hadden,

.

The government contends, however, that this Court may only review Bethea’s claim

for plain error, because Bethea never raised this sentencing error with the district court.

But “[t]he plain-error standard applies only if a defendant has an opportunity to object in

the trial court.” United States v. Rogers,

(4th Cir. 2020) (holding that

plain error did not apply when claim “arose, almost by definition, only after [the

appellant’s] sentencing hearing and after the judgment was entered and final”); United

States v. Bolden,

(4th Cir. 2020) (noting lack of “meaningful

opportunity to object” when district court adopted a sentencing position sua sponte); Fed.

R. Crim. P. 51(b) (“If a party does not have an opportunity to object to a ruling or order,

the absence of an objection does not later prejudice that party.”).

In this case, Bethea could not have contested the legality of his sentence until it was

imposed by written judgment in 2019. Bethea’s various § 2255 filings requested various

forms of relief: a plenary resentencing, leave to withdraw his guilty plea, and an evidentiary

hearing on his ineffective assistance of counsel claims. The district court instead reentered

judgment without any opportunity for a hearing at which Bethea could have objected. We

18 recognize, of course, that vacatur and reimposition of sentence is a “common remedy” for

this sort of claim. Hadden,

n.9. But that common remedy as imposed in

this case precluded Bethea from objecting to the entry of that sentence, such that any error

in the sentence itself “arose, almost by definition” after his remedy was finalized. Rogers,

. We therefore will not hold Bethea to the more stringent plain error

standard.

B.

Finally, we conclude that the district court abused its discretion by imposing a

sentence of life imprisonment without release, because that sentence was no longer

permitted in 2019. To see why, we turn to the statutory language:

In 2015, individuals convicted of conspiracy to distribute five kilograms or more of

cocaine or 280 grams or more of cocaine base faced the following sentencing structure:

[S]uch person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life . . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment . . . . If any person commits a violation of this subparagraph . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . . .

19 § 841(b)(1)(A) (2015) (emphasis added). The FSA then amended this sentencing structure.

FSA § 401(a)(2)(A), 132 Stat. at 5220. At the time the district court reimposed judgment

in 2019, that section read:

[S]uch person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life . . . . If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment . . . . If any person commits a violation of this subparagraph . . . after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years . . . .

§ 841(b)(1)(A) (2019) (emphasis added).

In 2015, the district court sentenced Bethea as “statutorily required” to the

mandatory minimum sentence for individuals with two or more felony drug convictions.

See J.A. 84 (noting that sentence was based on “the statutory provisions for a mandatory

sentence in this case”). Under § 841(b)(1)(A) (2015), that mandatory sentence was life

imprisonment without release. But at the time the district court vacated and then reimposed

its judgment, the statute only permitted a maximum sentence of life imprisonment. See

§ 841(b)(1)(A) (2019). 11

11 The written judgment as entered in 2015 and 2019 omits the phrase “without release.” However, this Court has made clear that when there is a conflict between the orally pronounced sentence and the judgment, the orally pronounced sentence controls. See Rakes v. United States,

, 687–88 (4th Cir. 1962). The district court made clear in 2015 that Bethea was being sentenced to the required mandatory minimum, which

20 Multiple canons of construction support the conclusion that the distinction between

life imprisonment and life imprisonment without release is one with legal import. “The

plain language of a statute controls where it is not ambiguous and not unconstitutional.”

United States v. Luskin,

(4th Cir. 1991). As a corollary to that rule, we

must presume Congress intends different meaning when it uses different language across

a statute. Russello,

. We must also construe statutes to “avoid any

interpretation that may render statutory terms meaningless or superfluous.” Scott v. United

States,

(4th Cir. 2003).

The 2015 version of § 841(b)(1)(A) clearly distinguished between individuals who

may be sentenced to life imprisonment and individuals—like Bethea—who were subject

to a mandatory sentence of life imprisonment without release. We presume that Congress’s

use of this distinct language to describe a sentence for one specific category of offenders

created a distinct sentence. See Russello,

. Indeed, § 841(b)(1)(A) (2015)

referred to “life” or “life imprisonment” consistently throughout the statute before

switching, at the very end, to “life imprisonment without release.” This presumption is

further supported by the plain meaning of the two phrases. See Luskin,

.

Examined side-by-side, life imprisonment without release is read most naturally as a more

severe sentence than life imprisonment, because it contemplates a punishment more total

in its effects. Finally, alternative readings would produce superfluity issues. See Scott,

at the time was life imprisonment without release. The district court then reentered its judgment without changing that sentence in 2019, thereby reimposing the same sentence.

21

. “Life imprisonment without release” cannot be read as the equivalent of

“life imprisonment” without rendering the words “without release” superfluous. Nor can

it be read to mean “life imprisonment without parole,” because a separate clause already

made clear that no individual sentenced under § 841 was eligible for parole. See

§ 841(b)(1)(A) (2015). 12 Thus, to avoid superfluity, the words “without release” must

denote a more severe punishment than “life imprisonment,” which forecloses access to

non-parole sentencing relief. 13

In addition to the language itself, the statute’s structure supports this reading. We

“interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible,

all parts into a harmonious whole.” FDA v. Brown & Williamson Tobacco Corp.,

, 132–33 (2000). Read as a whole, § 841(b)(1)(A) (2015) created a scheme that

increased the criminal penalties for conspiracy to distribute cocaine as the number of

aggravating factors increased. Indeed, “Congress . . . mandated a progressive,

incremental, ‘stairstep’ approach to punishment of repeat offenders,” the “final step” of

which required life imprisonment without release. United States v. Blackwood,

(4th Cir. 1990).

12 Congress also abolished parole in 1984, Richmond v. Polk,

(4th Cir. 2004), and therefore “life” and “life without possibility of parole” mean the same thing in the federal system, United States v. Under Seal,

, 719 n.4 (4th Cir. 2016). 13 We do not decide today whether a sentence of life imprisonment without release precludes applications for compassionate release under

(c). We note that under the current version of that statute, compassionate release can be considered “in any case” in which a prisoner satisfies certain conditions.

§ 3582(c)(1).

22 Once Congress stripped this language from § 841, courts were no longer empowered

to impose this separate sentence. The practical consequences for Bethea may be minimal;

but this does not alter the conclusion that, in 2019, the district court was without authority

to impose a sentence of life imprisonment without release. 14 Nor is the distinction pure

formalism. For instance, Congress could pass a law retroactively reducing “sentences of

life imprisonment” for nonviolent drug offenders. Alternatively, Congress could make

nonviolent drug offenders sentenced to life imprisonment eligible for supervised release.

Bethea would be ineligible for either reform, because he received the distinct, more severe

sentence of life imprisonment without release. We hold that Congress’s clear distinction

between the two sentences had legal significance and his 2019 corrected sentence was

illegal.

IV.

The procedural posture of this case defies easy categorization. This is a classic close

case and our holding is a narrow one: because Bethea’s sentence was nullified following a

§ 2255 motion—the very purpose of which was to change the date of his sentencing

14 We previously held in United States v. Surratt,

, 255–57 (4th Cir. 2015), that an appellant could not seek relief from an illegal sentence under the savings clause based on a mandatory sentence of life imprisonment without release, because § 841(b)(1)(A) still provided for life imprisonment. That ruling was vacated by this Court’s decision to rehear the case en banc and does not control. United States v. Surratt, No. 14-6851,

(4th Cir. Dec. 2, 2015); 4th Cir. R. 35(c) (“Granting of rehearing en banc vacates the previous panel judgment and opinion . . . .”). The appeal was ultimately rendered moot while en banc consideration was pending. United States v. Surratt,

(4th Cir. 2017).

23 judgment to permit a direct appeal—the FSA applied to his sentence as imposed in 2019.

In so holding, we look to the unique remedy imposed by the district court and its legal

import.

We also recognize that Bethea’s waiver of his appellate rights truncates the scope

of the remedy we may impose. Because the FSA in 2019 did not permit life imprisonment

without release, his sentence was illegal. We therefore vacate the district court’s judgment

and instruct it to correct Bethea’s sentence, consistent with this opinion. We note, however,

that § 2255 remedies are within the district court’s equitable discretion, and it may decide

instead that plenary resentencing is appropriate. 15

VACATED AND REMANDED

15 We also note this Court’s recent opinion in United States v. McCoy,

(4th Cir. 2020). In that case, we recognized that individuals in Bethea’s position may also be eligible for compassionate release under

, as amended by the FSA.

at 284–88.

24 QUATTLEBAUM, Circuit Judge, dissenting:

To me, this is a simple case of statutory construction. The outcome turns on the

unambiguous text of Section 401(c) of the First Step Act. There, Congress mandated

amended sentences for certain drug offenses but limited retroactivity of the provision “to

any offense that was committed before the date of enactment of [the] Act, if a sentence for

the offense has not been imposed as of such date of [the Act’s] enactment.” FSA § 401(c),

132 Stat. at 5221. The Act went into effect on December 21, 2018. All parties acknowledge

that Bethea was sentenced for a drug offense in 2015—nearly three years prior to the Act’s

effective date. Therefore, under its plain language, the Act’s amendments do not apply to

Bethea.

The majority concludes, however, that, under § 401(c), the district court should have

applied § 841(b)(1)(A)—as amended by the Act—to Bethea’s 2019 judgment. * For that

reason, the majority vacates the district court’s judgment and instructs the district court to

* As the majority notes, the district court vacated and reentered its judgment as a result of Bethea’s claim that his trial counsel was constitutionally ineffective for failing to file a direct appeal, among other issues. The district court took this approach—in large part—due to logistical issues related to Bethea’s medical condition and Bethea’s refusal to consent to video conferencing technology for a hearing on the ineffective assistance of counsel claim of his § 2255 petition. Having considered Bethea’s unique circumstances, the district court’s efforts were aimed at providing Bethea with the relief he sought in his claim for ineffective assistance of counsel, the ability to appeal. Thus, it provided Bethea with a new appeal window and otherwise reentered the same judgment. Despite having obtained that relief, the only claim Bethea pursues on appeal now is whether the district court abused its discretion in reimposing a sentence upon Bethea without regard to the First Step Act. Of course, this is not a claim that his trial counsel could have pursued on appeal in 2015. The Act did not exist.

25 correct Bethea’s sentence. It reasons that, although a sentence for Bethea’s drug offense

had already been imposed as of the time of the Act’s enactment, that sentence was vacated

and the district court reentered its judgment in 2019, after the enactment date. In those

circumstances, the majority concludes the prior sentence has no effect on the Act’s

applicability.

The problem with this reasoning, in my view, is that it rewrites this portion of the

Act. The amendments set forth in the Act do not apply if a sentence for the offense had

been imposed before the Act’s enactment date. And whether or not Bethea’s sentence had

been vacated, it does not change the historical fact that a sentence for his offense had been

imposed by a district court. Under the plain language of the Act, that is fatal to Bethea’s

claim.

Congress had a variety of options in determining when the amended drug sentences

should apply. It chose to draw that line of application only where “a sentence for the offense

has not been imposed as of such date of [the Act’s] enactment.” Id. As a matter of policy,

we might have different views of that line-drawing exercise. But it is not our role to wade

into those matters of policy. In my view, we should simply apply the text as written.

I do not deny that Congress could have been more clear prescribing the Act’s

amended sentences not to apply when, like here, a prior sentence has been vacated. It could

have, for example, written the Act as follows: “if any sentence, whether vacated or not, for

the offense has not been imposed as of such date of enactment.” But almost any statutory

language can be made clearer. Unambiguity does not require perfection. When language is

26 unambiguous, as I believe the pertinent language of the Act is, we should not reject it just

because it could be made even more clear.

For these reasons, I would affirm the district court. I respectfully dissent.

27