452 F.3d 572 (6th Cir. 2006), 04-4540, United States v. Sanders

Docket Nº:04-4540.
Citation:452 F.3d 572
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lummie SANDERS, Defendant-Appellant.
Case Date:June 29, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 572

452 F.3d 572 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lummie SANDERS, Defendant-Appellant.

No. 04-4540.

United States Court of Appeals, Sixth Circuit.

June 29, 2006

Submitted: October 27, 2005

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 93-00184—David D. Dowd, Jr., District Judge.

Page 573

COUNSEL

ON BRIEF:

Alan C. Rossman, Cleveland, Ohio, for Appellant. Bruce A. Khula, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which GRIFFIN, J., joined.

MARTIN, J. (pp. 583 - 593), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

The case before us originated in 1993, when defendant-appellant Lummie Sanders

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was convicted of two firearm offenses and sentenced to 37 months imprisonment. Seven years later, following two direct appeals and one appeal of a motion under 28 U.S.C. § 2255, this court determined that Sanders should be sentenced to the 180-month minimum mandated by the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). By this time, however, Sanders had been released from custody because the 37-month sentence the district court imposed in granting the § 2255 motion, the same sentence imposed in Sanders' first sentencing, had been completed. Four more years passed before the district court issued a warrant for Sanders' arrest and imposed the longer sentence. Sanders claims that this delay violated his constitutional right to due process. As we find no due process violation, we affirm the sentence imposed by the district court.

I.

Sanders was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and for making a false statement in acquiring a firearm in violation of 18 U.S.C. § 922(a)(6). The jury found Sanders guilty on all counts, and the government requested the fifteen-year minimum sentence mandated by the ACCA, as Sanders had three previous convictions for violent felonies: (1) a 1968 conviction for robbery; (2) a 1972 conviction for assault with a dangerous weapon; and (3) a 1986 conviction for involuntary manslaughter.

Before sentencing, Sanders challenged the constitutionality of his 1968 and 1972 convictions. The district court ruled that the 1972 conviction was constitutionally infirm. This ruling made the ACCA inapplicable to Sanders and the court sentenced him to 37 months imprisonment in December 1993. On appeal, a panel of this court upheld the § 922 convictions but remanded for reconsideration of the sentence. United States v. Sanders, Nos. 93-4322 & 94-3031, 1994 WL 714377, at *3 (6th Cir. Dec.22, 1994) (per curiam). The court ruled that under Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the district court should have considered the 1972 assault conviction in its determination of whether to sentence under the ACCA; however, the court asked for a further ruling on whether the 1986 involuntary manslaughter conviction counted as a predicate felony under the ACCA. Id. at *2-3.

On remand, the district court determined that involuntary manslaughter was a violent felony for the purposes of the ACCA, and thus, the statutory minimum sentence must be imposed. After applying a Guidelines enhancement, the court sentenced Sanders to 188 months in prison. Sanders appealed, and a panel of this court agreed with the determination that the ACCA applied. United States v. Sanders, 97 F.3d 856, 860-61 (6th Cir. 1996). The panel disagreed, however, with the district court's ruling that it lacked authority to grant a downward departure under the Sentencing Guidelines, and the case was remanded once again for resentencing. Id. at 861-62.

In July 1997, the district court resentenced Sanders to the minimum permitted by the ACCA- 180 months imprisonment. Sanders then filed a motion to vacate under 28 U.S.C. § 2255, arguing that Custis did not foreclose him from attacking his predicate convictions and that his 1972 assault conviction was constitutionally infirm. The district court accepted both of these arguments and resentenced Sanders to the original term of 37 months in April 1998. As Sanders had already served 37 months, he was released from custody.

The government once again appealed, and in 1999, this court reversed the grant

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of habeas relief, ruling that Custis prevented Sanders from using § 2255 to attack a state court conviction. Sanders v. United States, no. 98-3651, 1999 WL 591455, at *2 (6th Cir. July 27, 1999). Sanders' petition for rehearing was denied in January 2000 and the Supreme Court denied certiorari in March 2000. Sanders v. United States, 529 U.S. 1028, 120 S.Ct. 1440, 146 L.Ed.2d 328 (2000). The Sixth Circuit issued its order in April 2000, which was received and docketed by the district court. That same month, Sanders completed his supervised release period under the original sentence.

The district court took no action following the Sixth Circuit's order. After waiting for a Supreme Court decision on a related topic, 1 the government made its first request that the case be advanced for resentencing in June 2001. Sanders' attorney successfully moved to be reappointed to the case in July 2001 and filed a response to the government's resentencing motion in October 2001. The response argued that resentencing would violate Sanders' sixth and Eighth Amendment rights and requested a stay so that Sanders could be located. In November 2001, the government replied to the constitutional claims and requested a warrant for Sanders' arrest to "avoid a charge [that] the government failed to exercise due diligence in locating the defendant, and to facilitate his resentencing." The district court did not issue the stay, took no action on the briefs, and did not issue an arrest warrant.

The government alleges that in July 2002, the Chief of the Criminal Division of the U.S. Attorney's Office for the Northern District of Ohio wrote a letter to the district court, expressing concern over the delay and renewing the government's request for an arrest warrant. The district court, though, has no recollection of having received this letter, and it does not appear on the court's docket sheet. The district court took no action during this period.

One year later, in June 2003, the government again moved for the district court to advance the case. This motion also appears not to have been docketed by the district court, but Sanders concedes that this motion was filed. The district court responded six months later, issuing a warrant for Sanders' arrest in December 2003. Sanders was located within eight days of the issuance of the warrant and arrested without incident. He then was released on bond without objection.

In January 2004, the court granted Sanders' request to file a supplemental brief in opposition to the motion for resentencing. The brief was filed in February 2004 and the government responded in March 2004. Again, the district court took no action. Finally, the government filed a petition for a writ of mandamus with this court in October 2004. In November 2004, the district court issued a ruling, denying Sanders' constitutional claims and reimposing the 180-month sentence required by the ACCA.2 On the same day, the district court submitted a response to the petition for a writ of mandamus, taking

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responsibility for the delay in resentencing and stating that its action in imposing the sentence rendered the mandamus action moot. Sanders then filed this timely appeal, arguing that resentencing after such a lengthy delay violated his constitutional right to due process.

II.

A due process claim raising a mixed question of law and fact is reviewed de novo. Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001). Sanders claims that the delay of over four years, from the issuance of a mandate by this court in April 2000 to his resentencing in November 2004, violated his constitutional right to due process.3

A.

We must first address the proper framework for analyzing Sanders' claim. Sanders' primary argument is that the delay violated his right to substantive due process. Relying on language in United States v. Lundien, 769 F.2d 981 (4th Cir.1985), Hawkins v. Freeman, 195 F.3d 732 (4th Cir.1999) (en banc), and County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), he argues that it violates due process for a court to correct a sentence, even an illegal one, after so much time has passed that a defendant's expectations as to its finality have "crystallized." We believe that Sanders has misconstrued his claim. Unlike the cases cited by Sanders, the situation before us does not involve an increase in the severity of a sentence following an administrative or other governmental error. In Lundien, the court stated its intent to sentence the defendant to a twenty-year prison term. When the court handed down the sentence, however, the total term of imprisonment was only ten years. Five days later, upon motion of the government, the court corrected its error. Lundien, 769 F.2d at 983. The defendant in Hawkins was mistakenly granted parole. Twenty months later, the state noticed the error, revoked the parole and rearrested the defendant. Hawkins, 195 F.3d at 736-37. In both cases, the Fourth Circuit used a substantive due process framework to evaluate the claims. As neither defendant had reason to believe an error had occurred, the court analyzed whether their expectations as to the finality of their sentences had "crystallized" so that it would be fundamentally unfair to defeat those expectations. In...

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