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United States v. Richardson

United States Court of Appeals, Sixth Circuit

October 11, 2018

United States of America, Plaintiff-Appellee,
v.
Frank Richardson, Defendant-Appellant.

          Argued: August 1, 2018

          Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 2:10-cr-20397-2-John Corbett O'Meara, District Judge.

         ARGUED:

          Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit, Michigan, for Appellant.

          Shane Cralle, UNITED STATES ATTORNEYS OFFICE, Detroit, Michigan, for Appellee.

         ON BRIEF:

          Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit, Michigan, for Appellant.

          Shane Cralle, UNITED STATES ATTORNEYS OFFICE, Detroit, Michigan, for Appellee.

          Before: COOK, STRANCH, and NALBANDIAN, Circuit Judges.

          OPINION

          NALBANDIAN, CIRCUIT JUDGE.

         On his second appeal to this court, Defendant-Appellant Frank Richardson asks us to overturn his conviction under 18 U.S.C. § 924(c) for aiding and abetting the use of a firearm during a crime of violence. On his first appeal, we affirmed his conviction and sentence in full. But while that appeal was pending, the Supreme Court decided Johnson v. United States, which held that part of the Armed Career Criminal Act's definition of a violent felony was unconstitutionally vague. 135 S.Ct. 2551 (2015). Although Richardson was not convicted under the Armed Career Criminal Act, he petitioned the Supreme Court for certiorari, arguing that Johnson nonetheless called part of his conviction into question. Richardson contends that the residual clause of § 924(c) is unconstitutional because its definition of the term, crime of violence, is similar to the language at issue in Johnson. The Court granted Richardson's petition, vacated our judgment, and remanded the matter to this court. In turn, we vacated Richardson's sentence and remanded the case to the district court to determine whether Richardson's original sentence should stand given Johnson.

         Without determining whether § 924(c)'s residual clause is unconstitutionally vague, we affirm Richardson's conviction under § 924(c)'s force clause, which supplies a separate definition of crime of violence. We also conclude that our remand limited the district court's inquiry to Johnson-related issues and that the district court properly refrained from considering Richardson's other arguments about alleged deficiencies in the indictment and the trial court's jury instructions-arguments that he could have raised in his first appeal but did not. Finally, we hold that Richardson's sentence is procedurally and substantively reasonable.

         For the reasons stated below, we AFFIRM the district court's decision to reinstate Richardson's original sentence.

         I.

         Frank Richardson participated in a series of armed robberies of electronics stores in and around Detroit, Michigan, between February and May 2010. At least one robber used a gun during each robbery. Although Richardson planned each heist and served as a lookout, he never entered a store while a robbery occurred. United States v. Richardson, 793 F.3d 612, 618 (6th Cir. 2015). Law enforcement apprehended Richardson shortly after the commission of the fifth and final robbery. Id. at 620.

         In June 2013, a jury convicted Richardson on five counts of aiding and abetting Hobbs Act robbery, 18 U.S.C. § 1951, five counts of aiding and abetting the use of a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g). The district court sentenced Richardson to 1, 494 months in prison, and we affirmed Richardson's conviction and sentence on appeal. Richardson, 793 F.3d at 612.

         While Richardson's appeal was pending, the Supreme Court decided Johnson. That decision held that the definition of the term, violent felony, in the Armed Career Criminal Act's residual clause, is unconstitutionally vague. Johnson, 135 S.Ct. at 2563. Richardson then petitioned the Court for a writ of certiorari. The Court granted that petition, vacated our judgment, and remanded the case "for further consideration in light of Johnson v. United States." Richardson v. United States, 136 S.Ct. 1157 (2016). In turn, we issued an order vacating Richardson's sentence and remanding the case to the district court "for reconsideration of Richardson's sentence in light of Johnson v. United States." United States v. Richardson, Nos. 13-2655, 13-2656, slip op. at 2 (6th Cir. Aug. 29, 2016).

         In September 2017, the district court held a resentencing hearing and reinstated Richardson's original ...


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