from the United States District Court for the Eastern
District of Tennessee at Chattanooga. No.
1:04-cr-00068-1-Travis R. McDonough, District Judge.
Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant.
S. Neff, UNITED STATES ATTORNEY'S OFFICE, Chattanooga,
Tennessee, Debra A. Breneman, UNITED STATES ATTORNEY'S
OFFICE, Knoxville, Tennessee, for Appellee.
Before: BATCHELDER and CLAY, Circuit Judges; SARGUS, Chief
Larry D. Nichols appeals from a corrected sentence entered by
the district court in an amended judgment pursuant to 28
U.S.C. § 2255. For the reasons that follow, we
VACATE Defendant's corrected sentence
and REMAND with instructions for Defendant
to be sentenced in a manner consistent with this opinion.
2004, Defendant was convicted for felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), (e). The
statutory maximum sentence for that offense is ten years'
imprisonment. See § 924(a)(2). However, the
district court found that Defendant qualified as an armed
career criminal under the residual clause of the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The
ACCA overrode the ten-year statutory maximum for
Defendant's conviction, instead requiring that the
district court sentence Defendant to a minimum of fifteen
years' imprisonment. See § 924(e)(1). The
district court sentenced Defendant to a term of 288
months' imprisonment, or 24 years.
in prison, Defendant was convicted and sentenced for
conspiracy to distribute heroin, in violation of 21 U.S.C.
§§ 846, 841(b)(1)(C); possession of heroin by an
inmate, in violation of 18 U.S.C. § 1791(d)(1)(C); and
conspiracy, in violation of 18 U.S.C. § 371. The
district court sentenced Defendant to an additional 151
months' imprisonment, to be served consecutively to
Defendant's existing 24-year term of imprisonment for the
2015, the Supreme Court invalidated the ACCA's residual
clause as unconstitutionally vague. Johnson v. United
States, 135 S.Ct. 2551 (2015). The Supreme Court later
held that the Johnson rule applies retroactively,
Welch v. United States, 136 S.Ct. 1257 (2016),
thereby permitting Defendant to challenge his enhanced
sentence under the ACCA. Defendant then filed a motion under
18 U.S.C. § 2255 in which he requested resentencing. The
district court found Defendant's motion to be
meritorious, but rather than conducting a full resentencing
proceeding, the district court elected to correct
Defendant's sentence by issuing a memorandum opinion and
time the district court entered Defendant's corrected
sentence, Defendant had already served twelve years in
prison-two years in excess of the ten-year statutory maximum
for his firearm offense. The Guidelines range for
Defendant's conduct, absent the ACCA enhancement, was 51
to 63 months' imprisonment, which is well below the
statutory maximum of ten years. Based on his belief that a
period of over-incarceration can be calculated and credited
toward the completion of a consecutive sentence, Defendant
asked the district court to impose a Guidelines-range
sentence and, in any event, to impose a sentence of a
specific term of months. The district court denied
Defendant's request and instead imposed a corrected
sentence of "time served," which was equivalent to
a term of about twelve years' imprisonment. (R. 52 at
PageID #347.) Defendant requested reconsideration, which the
district court denied. Defendant then filed this timely
appeal, Defendant argues that his sentence of "time
served" exceeds the statutory maximum and that the
sentence is unreasonable, regardless of its legality. We
address each issue in turn.
Legality of Defendant's Sentence
courts have broad discretion when making sentencing
decisions. Gall v. United States, 552 U.S. 38, 46
(2007). Indeed, this Court must give due deference to a
district court's sentencing decision, even when that
decision results in a sentence that is outside the
recommended Guidelines range. Id. at 51, 59. But a
district court's discretion has a firm boundary in that
each sentence must be "within statutory limits."
Apprendi v. New Jersey, 530 U.S. 466, 481 (2000). A
sentence that exceeds the statutory maximum violates
"constitutional protections of surpassing
importance," including "the proscription of any
deprivation of liberty without 'due process of
law.'" Id. at 476-77. "Elementary
notions of fairness enshrined in our constitutional
jurisprudence dictate that a person receive fair notice not
only of the conduct that will subject him to punishment, but
also of the severity of the penalty that a State may
impose." BMW of N. Am., Inc. v. Gore, 517 U.S.
559, 574 (1996). Thus, although we must give due deference to
sentencing decisions that fall within statutory bounds, we
must also vacate any sentence that falls outside statutory
bounds-even when the issue is not raised by prisoners
themselves. See United States v. Graham, 275 F.3d
490, 522 (6th Cir. 2001) ("Both the Supreme Court and
this circuit have found sua sponte consideration of
plain error to be appropriate to remedy unlawful sentences
imposed by the district court."). As the Tenth Circuit
recently explained, "illegal sentences 'trigger per
se, reversible, plain error.'" United States v.
Titties, 852 F.3d 1257, 1275 (10th Cir. 2017).
case, Defendant's corrected sentence must be vacated. The
district court imposed a sentence of "time served"
based on Defendant's violation of 18 U.S.C. §
922(g), which carries a statutory maximum sentence of ten
years' imprisonment. § 924(a)(2). Under the
circumstances of this case, a sentence of "time
served" equates to a term of about twelve years'
imprisonment. Because the district court had no authority to
impose a sentence of more than ten years' imprisonment,
the court erred when it imposed Defendant's corrected
sentence. See § 924(a)(2); Graham, 275
F.3d at 522.
support of its decision to impose a sentence exceeding the
statutory maximum, the district court cited a "standard
procedure" calling for the "impos[ition of] a
corrected term of 'time served' where a petitioner
entitled to Johnson-based collateral relief has
already served in excess of the 120-month statutory maximum
applicable to non-ACCA offenders under 18 U.S.C. §
924(a)(2)." (R. 59 at PageID #396.) However, all of the
cases cited by the district court in support of this
procedure involved prisoners who were eligible for immediate
release following the correction of their sentences to
"time served." See Hayes v. United States,
No. 4:16 CV 926 CDP, 2016 WL 4206028, at *3 (E.D. Mo. Aug.
10, 2016) (imposing corrected sentence of "time
served," resulting in defendant's immediate
release); McBee v. United States, No.
4:06-CR-17-HSM-SKL-1, 2016 WL 3962996, at *3 (E.D. Tenn. July
21, 2016) (granting expedited motion to modify sentence and
giving Bureau of Prisons 10 days "to process
Petitioner's release"); Hadley v. United
States, No. 102CR147TRMSKL1, 2016 WL 3746567, at *3
(E.D. Tenn. July 7, 2016) (same); Phillips v. United
States, No. 216CV02288JPMCGC, 2016 WL 3039990, at *4
(W.D. Tenn. May 27, 2016) (same); United States v.
Husbands, No. 4:01CR77/MCR/GRJ, 2016 WL 3702676, at *1
(N.D. Fla. July 12, 2016) (modifying sentence to "time
served," resulting in defendant's immediate
eligibility for release); Cox v. United States, No.
3:05-CR-74-RJC-CH-1, 2016 WL 3514454, at *3 (W.D. N.C. June
27, 2016) (modifying defendant's sentence to "time
served" and ordering "immediate release from
custody); United States v. Lillard, No. 8:02CR374,
2016 WL 3033703, at *1 (D. Neb. May 26, 2016) (modifying
sentence to "time served" and concluding "it
is in the interests of justice to release the
defendant"). Therefore, these prisoners had no reason to
challenge their corrected sentences as unlawful, and doing so
may have only prolonged their confinement.
contrast, the modification of Defendant's sentence to
"time served" did not result in Defendant becoming
eligible for immediate release; Defendant will not be
eligible for release until he completes his consecutive
sentence for the conviction he received while incarcerated.
Defendant would like to argue that his period of
over-incarceration should be applied toward the latter
sentence. The district court found that Defendant should not
be permitted to obtain such an outcome, offering its opinion
that "[a]voiding the creation of such 'time
banks' makes complete sense as a matter of sentencing
policy." (R. 59 at PageID #397 n.2.) But that issue was
not before the district court. As the government now admits,
"[t]his is not a case in which the district
court had 'jurisdiction and authority to reevaluate the
entire aggregate sentence' because the original sentence
had been deemed a unified 'packaged' or
interdependent 'components of a single comprehensive
sentencing plan.'" (Gov. Br. 11-12 (emphasis
original) (citing Pasquarille v. United States, 130
F.3d 1220, 1222 (6th Cir. 1997).) Rather, the only issue
before the district court-and now before this Court-is how to
bring Defendant's sentence for the violation of §
922(g) into compliance with the law. Regardless of its
opinion about sentencing policy, the district court could not
lawfully impose a sentence of more than ten years'
imprisonment. See Apprendi, 530 U.S. at 481;
BMW, 517 U.S. at 574. The court therefore erred when
it entered a sentence of "time served" where
"time served" equated to a term in excess of the
statutory maximum sentence.
government argues that the district court committed no
error-or that the district court's error was
inconsequential-because "[a] district court cannot
actually turn back the clock to reduce the number of months a
defendant has already spent in custody," and therefore
"'correcting' a sentence to a term of months
less than the number of months already served by a defendant
amounts to a legal fiction." (Gov. Br. 8.) But there is
nothing fictional about the deprivation of liberty associated
with over-incarceration. See Pollard v. United
States, 352 U.S. 354, 358 (1957) (allowing a defendant
who had already served his time to challenge the length of
his sentence due to the "possibility of consequences
collateral to the imposition of [the] sentence"). Once
Defendant completed his sentence for the violation of §
922(g), which he did after no more than ten years in prison,
the government had no authority to continue to confine him
for that offense. The only legal fiction in these
circumstances is the district court's use of "time
served" as equivalent to "twelve years'
imprisonment." A sentence in excess of the statutory
maximum is unlawful, regardless of how it is disguised and
regardless of the amount of time the defendant has already
served. See Apprendi, 530 U.S. at 481;
Graham, 275 F.3d at 522; Titties, 852 F.3d
the dissent picks up the torch of the lone dissent in
Welch, lamenting the "steep price" of
correcting unconstitutional sentences. From the dissent's
point of view, we should not "years later pretend that
it [the sentence] was actually illegal from the start"
because "at all times prior to Welch,
[Defendant] was incarcerated lawfully under a sentence
mandated by Congress." The Supreme Court has twice
explained the flaw in this premise. In Johnson, the
Supreme Court explained that the residual clause-the supposed
"mandate" to which the dissent refers-is invalid.
Johnson, 135 S.Ct. at 2560. Writing for the
majority, Justice Scalia explained that the residual clause
is too "shapeless a provision to condemn someone to
prison for 15 years to life" and that the clause
therefore "does not comport with the Constitution's
guarantee of due process." Id. Then, in
Welch, the Supreme Court explained that the
vagueness of the residual clause meant that every
sentence previously entered pursuant to it was invalid
because "a court lacks the power to exact a penalty that
has not been authorized by any valid criminal statute."
Welch, 136 S.Ct. at 1268. The dissent's
observation that Defendant was "incarcerated
lawfully" therefore misses the mark. Just as it "is
objectively unlawful and outside the scope of Presidential
authority" to order the "forcible relocation of
U.S. citizens to concentration camps, solely and explicitly
on the basis of race," Trump v. Hawaii, 138
S.Ct. 2392, 2423 (2018), it is beyond the authority of
Congress to order the imprisonment of citizens based on a
"wide-ranging inquiry" that "both denies fair
notice to defendants and invites arbitrary enforcement by
judges," Johnson, 135 S.Ct. at 2557. When a
governmental action is unconstitutional, Congressional
authorization is irrelevant.
analysis is unchanged by the dissent's parade of
horribles. The dissent asks, for instance, "[h]ow many
corrected sentences will be now per se reversible plain
error?" And, "[h]ow many inmates, like Nichols,
will discover that they have long been unlawfully
incarcerated, and what will be the effect of that
discovery?" The dissent, it seems, would like to pretend
that inmates like Defendant were never subjected to
unconstitutional sentences-that the residual clause suddenly
became vague as the Supreme Court penned
Johnson rather than being unconstitutionally vague
all along. On this premise, the dissent proposes that
"Welch stops the sentence when the district
court grants the § 2255, whereupon the 15-year minimum
no longer applies and the 10-year maximum
immediately begins to apply, with the result that
Welch's retroactivity allows the district court
to apply Johnson to correct the sentences that were
imposed prior to Johnson, but does not empower the
district court to change any sentences that were served prior
to the award of the § 2255." This paradigm might be
administratively convenient for the courts, but it ignores
the constitutional underpinnings of Johnson and
dissent then muddies the waters by raising a
"concern" about the applicable standard of review.
The dissent suggests that Defendant "is merely
challenging the district court's discretionary choice of
relief under § 2255" and that "[u]nder an
abuse-of-discretion standard, . . . the majority would likely
agree to affirm the district court." But Defendant's
appeal has little to do with § 2255 or with the
abuse-of-discretion standard. In the district court,
Defendant filed a § 2255 motion, which the district
court correctly granted. The district court then had
discretion to grant relief to Defendant in one of four forms:
discharge him, resentence him, grant him a new trial, or
correct his sentence. 28 U.S.C. § 2255(b). Defendant
does not challenge the district court's choice to correct
his sentence rather than to, for instance, grant a new trial.
Rather, Defendant challenges the correctness of his corrected
sentence. Because the district court had no discretion to
impose an unconstitutional sentence, the dissent's
hypothetical inquiry into whether the district court abused
its discretion is nonsensical.
the dissent complains that today's decision conflicts
with two unpublished cases. The first of these cases,
United States v. Watkins, 692 Fed.Appx. 307, 308
(8th Cir. 2017), is not even from this circuit, and the
dissent admits that "its analysis is cursory, almost
conclusory." The second of these cases, United
States v. Perotti, 702 Fed.Appx. 322 (6th Cir. 2017),
supposedly stands for the proposition that a sentence is
per se unreviewable once it is corrected to
"time served" because the termination of the
prisoner's confinement moots any potential challenge. As
an unpublished case, Perotti is not binding on this
panel. Moreover, Perotti's supposed rule flatly
contradicts the Supreme Court's holding in
Pollard. See Pollard, 352 U.S. at 358. To
the extent that Perotti is inconsistent with
Pollard, it is not-and never was-good law.
Reasonableness of Defendant's Sentence
also argues that his sentence must be vacated for the
independent reason that it is unreasonable. Before addressing
the merits of this argument, however, we must decide a
threshold question of first impression in this Circuit:
whether corrected sentences are subject to reasonableness
review. We conclude that they are. We have previously
explained, without limitation, that we "review sentences
for reasonableness." United States v.
Collington, 461 F.3d 805, 807 (6th Cir. 2006); see
also United States v. Walls, 546 F.3d 728, 736 (6th Cir.
2008) ("We review sentences imposed by the district
court for reasonableness."). The Supreme Court's
guidance on this issue is similarly sweeping. See Rita v.
United States, 551 U.S. 338, 341 (2007) ("The
federal courts of appeals review federal sentences and set
aside those they find 'unreasonable.'").
Moreover, although § 2255(b) gives the district court
"wide berth in choosing the proper scope of post-2255
proceedings," Ajan v. United States, 731 F.3d
629, 633 (6th Cir. 2013) (quoting United States v.
Jones, 114 F.3d 896, 897 (9th Cir. 1997)), and permits
the district court to grant relief in a form that "may
appear appropriate," id. (quoting §
2255(b)), the statute does not purport to override the
reasonableness standard of review. The government provides no
argument to the contrary. We therefore review Defendant's
corrected sentence for reasonableness.
Reasonableness review requires that each sentence be both
procedurally and substantively reasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007). A sentence is
procedurally unreasonable if the district court "fail[s]
to calculate (or improperly calculate[es]) the Guidelines
range, treat[s] the Guidelines as mandatory, fail[s] to
consider the § 3553(a) factors, select[s] a sentence
based on clearly erroneous facts, or fail[s] to adequately
explain the chosen sentence-including an explanation for any
deviation from the Guidelines range." Id.
Meanwhile, "a sentence may be substantively unreasonable
where the district court 'selects the sentence
arbitrarily, bas[es] the sentence on impermissible factors,
fail[s] to consider pertinent § 3553(a) ...