# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 50183

**____________ United States of America,**  Plaintiff

— Appellee **,**

versus **Michael Medina,** Defendant

— Appellant

**.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 1:05

- CR

- 39 -1

**______________________________** Before **Jones , Barksdale**  **,** and **Elrod ,**  Circuit Judges

**. Per Curiam**  **:** *****
At issue is whether section 403 of the First Step Act of 2018 applies to a defendant’s resentencing when his pre- enactment sentence was vacated post

- enactment . It does not. **AFFIRMED**

.

**_____________________**

* This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED April 3, 2024 Lyle W. Cayce Clerk Case: 22-50183 Document: 130-1 Page: 1 Date Filed: 04/03/2024No. 22

- 50183

2 I

. Michael Medina pleaded guilty to , and was convicted of : conspiracy
t o commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951; conspiracy to

use and carry a firearm durin g a crime of violence, in violation of 18 U.S.C. § 924(o); and two counts of using, carrying, and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1).
At the time of his first sentencing, § 924(c) required a seven
- year mandatory minimum sentence if a firearm was brandished ; and , “[i]n the case of a second or subsequent conviction under this subsection ” , a 25

- year mandatory minimum sentence. 18 U.S.C. § 924(c)(1) (A), (C) ( 2004 ). The 25

- year mandatory minimum applied even to instances where the “second or subsequent conviction” was obtained in the same proceeding. E.g. , Deal v. United States , 508 U.S. 129, 132 (1993) (construing “second or subsequent”)

. Therefore , the district court in 2005 imposed, inter ali a , a seven
- year sentence for Medina’s first § 924(c) conviction, and a consecutive 25

- year sentence for his second.
In 2016 , Medina moved to vacate his sentence under 28 U.S.C. § 2255 (providing remedies for sentence s imposed in violation of law)

. B ut, b efore
t he court ruled on the motion , the First Step Act was enacted , amend ing , inter alia , § 924(c)(1)(C)

. See First Step Act of 2018, Pub. L. No. 115

- 391, § 403, 132 Stat. 5194, 5221

– 22 (2018) (codified at 18 U.S.C. § 924(c) )

. The Act replaced the “second or subsequent conviction” language so that the
statute now reads: “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”

. 18 U.S.C. § 924(c)(1)(C) (202 3 ) (emphasis added). In other words, t he amended
statute no longer requires the imposition of a 25

- year mandatory minimum Case: 22-50183 Document: 130-1 Page: 2 Date Filed: 04/03/2024No. 22

- 50183

3 sentence fo r a second § 924(c) conviction that, like Medina’s, was obtained in the same proceeding. See id. Regarding scope , the First Step Act explained that the amended § 924(c) “appl [ied] to any offense that was committed before the date of enactment of this Ac t, if a sentence for the offense has not been imposed as of such date of enactment”. First Step Act of 2018 § 403(b).
A fter the amendment , the district court granted Medina’s motion in part , vacat ing his § 924(o) conviction

. Deciding full resentencing was appropriate, the court also vacat ed Medina’s sentence. On resentencing, however, and without mentioning the amended § 924(c) , t he court reimposed the seven

- and 25

- year sentences for the two § 924(c) convictions

. II.
Medina contends the district court erred in not applying the amended § 924(c). Because he (as he also concedes) did not raise this issue in district court, review is only for plain error. E.g. , United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012 ). Under that standard, he must show a forfeited plain error (clear

- or
- obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he makes that showing, we h ave discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. (citation omitted).
D uring the pendency of this appeal, our court h eld in United States v. Duffey that s ection 403 of the First Step Act does not “ appl [ y ] to post

enactment resentencings of defendants whose pre

- enactment sentences were vacated after the law was enacted”. 92 F.4th 304, 307 (5th Cir. 2024) , petition for cert. docketed sub nom. Hewitt v. United States ( U.S. 12 Mar. 2024) (No. 23

- 1002)

. Needless to say, and pursuant to our limited plain

- error Case: 22-50183 Document: 130-1 Page: 3 Date Filed: 04/03/2024No. 22

- 50183

4 review, the requisite clear

- or
- obvious error is lacking. Because Medina’s pre

enactment sentence was vacated after the First Step Act was enacted, section 403 does not apply to his post

- enactment resentencing. See id.
III. Accordingly , the sentence is **AFFIRMED**

. Case: 22-50183 Document: 130-1 Page: 4 Date Filed: 04/03/2024