RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 23a0215p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-1198 │ v. │ │ TIMOTHY IVORY CARPENTER, │ Defendant-Appellant. │ ┘ On Petition for Rehearing En Banc. United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cr-20218-4—Sean F. Cox, District Judge. Decided and Filed: September 18, 2023 Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges. _________________ COUNSEL ON PETITION FOR REHEARING EN BANC: Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, Jeffrey L. Fisher, O’MELVENY & MYERS LLP, Menlo Park, California, for Appellant. ON RESPONSE: Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Blake S. Hatlem, Andrew Picek, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. The court issued an order. KETHLEDGE, J. (pp. 3–6), delivered a separate opinion, in which SUTTON, C.J., and THAPAR and BUSH, JJ., joined, concurring in the denial of the petition for rehearing en banc. GRIFFIN, J. (pp. 7–11), delivered a separate opinion, in which MOORE and STRANCH, JJ., joined, dissenting from the denial of the petition for rehearing en banc. BLOOMEKATZ, J. (pp. 12–14), delivered a separate opinion, in which MOORE, CLAY, GRIFFIN, STRANCH and MATHIS, JJ., joined, dissenting from the denial of the petition for rehearing en banc. No. 22-1198 United States v. Carpenter Page 2 _________________ ORDER _________________ The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court.* Less than a majority of the judges voted in favor of rehearing en banc. Therefore, the petition is denied. *Judge Davis recused herself from participation in this decision. No. 22-1198 United States v. Carpenter Page 3 _________________ CONCURRENCE _________________ KETHLEDGE, Circuit Judge, concurring in the denial of rehearing en banc. Our panel applied binding circuit precedent in this appeal, but I write to explain why I think that precedent (namely United States v. Jackson, 995 F.3d 522 (6th Cir. 2021)) was correct. As an initial matter, we must apply something of a clear-statement rule here. The federal savings statute—codified at 1 U.S.C. § 109—provides that “[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide[.]” The word “repeal[,]” as used in § 109, “applies when a new statute simply diminishes the penalties that [an] older statute set forth.” Dorsey v. United States, 567 U.S. 260, 272 (2012). The First Step Act is plainly such a “repeal.” Cf. id.; see also United States v. Hughes, 733 F.3d 642, 644 (6th Cir. 2013). Thus, according to the Supreme Court, “we must assume that Congress did not intend” for such a repeal to apply retroactively in a defendant’s case “unless [Congress] clearly indicated to …
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