Doesn't the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto?

The question in the title of this post is prompted by the interesting intersection of an important sentencing reform in the new FIRST STEP Act and an important Eighth Amendment case that I have had my eye on for some time  finally getting before the Supreme Court.  Let me explain, starting with the FIRST STEP provision.

For those particularly concerned about extreme mandatory minimum sentences, Section 403 of the FIRST STEP Act is a heartening overdue change to federal sentencing law.  This provision, described as a "clarification of Section 924(c)," now eliminates the required "stacking" of 25-year mandatory minimums for using a firearm during other crimes for those offenders without a prior record convicted of multiple 924(c) counts at the same time.  In other words, the extreme 25-year recidivism enhancement of 924(c) is now to apply only to actual recidivists.

The prior requirement of "stacking" 924(c) counts led to Weldon Angelos' extreme 55-year mandatory-minimum sentence for selling marijuana with his personal guns nearby (which is discussed at length here by Paul Cassell, the judge forced to impose the sentence).  US Sentencing Commission data here and here shows that well over 100 offenders each year have been subject to convictions for multiple 924(c) counts.  Just a few of many extreme 924(c) stacked sentences are noted in prior posts here and here and here and here.  Sadly, Congress did not make Section 403 of the FIRST STEP Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.

But there is one particular defendant with a particularly extreme stacked 924(c) sentence that I am hoping might get some indirect benefit from the new law in his on-going Eighth Amendment litigation.  Wendell Rivera–Ruperto, who was paid in 2010 by undercover FBI informants to serve as "armed security" at six faux drug deals, received a federal sentence of nearly 162 years, of which 130 years were for his six stacked convictions under 924(c).  As discussed here a year ago, in a terrific First Circuit opinion denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlights many questionable elements of the Harmelin ruling and, writing on behalf of the entire First Circuit, suggests SCOTUS take up Rivera–Ruperto to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

As of a few days ago, as revealed in this SCOTUS docket sheet, all the cert papers have been finally filled in Rivera–Ruperto, and the Justices will consider the case at their February 22 conference.  Notably, and not surprisingly, the feds now say in opposition to cert that passage of the FIRST STEP Act reduces the important of the case: "future defendants in petitioner's position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance."  But, as the title of this post is meant to suggest, the fact that the Eighth Amendment is supposed to take guidance from an "evolving standards of decency" and be responsive to a "national consensus" against a sentence, I strongly believe the enactment of the FIRST STEP Act primarily operates to make Wendell Rivera–Ruperto's constitutional claim even more substantively potent. 

As I explained here, I see Justice Anthony Kennedy's departure as creating a new window of opportunity for advocates to urge overturning (or cutting back) the terrible Eighth Amendment precedent that is Harmelin.  Thus, I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.   I am fearful the Court will remain fearful of taking on these issues and thus leave the (now-even-stronger) Eighth Amendment claim in this case to be considered anew through an inevitable 2255 motion.  Still, my fingers are crossed to support the cert chances of potentially the biggest non-capital Eighth Amendment case in a generation.

A few prior related posts:

• Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant
• Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers