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United States v. Nichols

United States Court of Appeals, Sixth Circuit

July 30, 2018

United States of America, Plaintiff-Appellee,
Larry D. Nichols, Defendant-Appellant.

          Appeal 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.

         ON BRIEF:

          Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Steven 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 District Judge[*]


          CLAY, Circuit Judge.

         Defendant Larry D. Nichols appeals from a corrected sentence entered by the district court in an amended judgment pursuant to 28 U.S.C. § 2255.[1] 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.


         In 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.

         While 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 firearm offense.

         In 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 order.

         By the 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.


         On 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.

         A. Legality of Defendant's Sentence

         District 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).

         In this 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.

         In 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.

         By 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.

          The 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 at 1275.

         Meanwhile, 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.

         This 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 Welch.

         The 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.

         Finally, 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.

         B. Reasonableness of Defendant's Sentence

         Defendant 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 ยง 3553(a) ...

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