United States v. Brown

• Decision Date: 18 January 2018
• Docket Number: 16-14284,Nos. 16-14267,s. 16-14267
• Citation: 879 F.3d 1231
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jazzman Rickeem BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

879 F.3d 1231

UNITED STATES of America, Plaintiff–Appellee,

v.Jazzman Rickeem BROWN, Defendant–Appellant.

Nos. 16-14267

16-14284

United States Court of Appeals, Eleventh Circuit.

January 18, 2018

Jillian M. Jewell, Linda Julin McNamara, Michelle Thresher Taylor, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Vincent Chiu, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.

Rosemary Cakmis, Donna Lee Elm, Conrad Benjamin Kahn, Federal Public Defender's Office, Orlando, FL, for Defendant–Appellant.

Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.

MARTIN, Circuit Judge:

Jazzman Brown, who is a federal prisoner, brings this appeal of the sentence imposed on him in District Court, after that court granted his motion to vacate or correct his earlier sentence, filed pursuant to 28 U.S.C. § 2255.

In his § 2255 motion, Mr. Brown attacked his original sentence, saying that in light of Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), he no longer qualified for a 15–year sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). The District Court agreed and vacated Mr. Brown's 15–year sentence. However, the District Court went on to resentence Mr. Brown to a 10–year term of imprisonment, which is the longest sentence allowed under Mr. Brown's statute of conviction. Mr. Brown's new 10–year sentence is a significant upward variance from his corrected guideline range. The District Court imposed this statutory maximum sentence without conducting a resentencing hearing and without giving any explanation for the sentence. Mr. Brown argues here on appeal that the District Court erred by (1) correcting his sentence without conducting a resentencing hearing with Mr. Brown in attendance, and (2) imposing a sentence well above the guideline range without any explanation. After careful review, and with the benefit of oral argument, we vacate Mr. Brown's sentence and remand for a sentencing hearing, in which he can be present and allocute.

I.

In 2011, Mr. Brown pled guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Mr. Brown was sentenced to 15–years imprisonment, which is the mandatory minimum sentence required for ACCA defendants who have three earlier felony convictions that meet the definition given in the statute. Notably, for defendants who have not three, but instead one or two earlier convictions, the statute allows a sentence of no more than ten years. Mr. Brown's 15–year ACCA sentence was based on three predicate crimes: (1) a 2004 Florida conviction for sale of cocaine; (2) a 2005 Florida conviction for sale of cocaine; and (3) a 2009 Florida conviction for fleeing or eluding.

In 2015, Mr. Brown filed a 28 U.S.C. § 2255 motion in light of the Supreme Court's decision in Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). A motion filed pursuant to 28 U.S.C. § 2255 is a civil proceeding, separate from the criminal sentence it attacks. In his § 2255 motion, Mr. Brown argued that one of his predicate convictions, fleeing and eluding, no longer qualified as a "violent felony" so as to make him eligible for the 15–year ACCA sentence. The government agreed that Mr. Brown's 15–year sentence should be vacated. However, it asked the District Court to simply impose a new sentence of 10–years imprisonment and advised the court no sentencing hearing was necessary. Again, ten years is the highest sentence allowed under Mr. Brown's new statute of conviction. Mr. Brown filed a written objection, asserting that he was entitled to a resentencing hearing.

The District Court held no hearing, but granted Mr. Brown's § 2255 motion. The Order granting the motion said it "corrected" Mr. Brown's sentence "to reflect a revised term of 120 months' incarceration followed by three years' supervised release." In addition to holding no resentencing hearing in connection with Mr. Brown's resentencing, the court gave no explanation for the sentence it imposed. Mr. Brown filed a motion for reconsideration, again asking the District Court to hold a resentencing hearing. And again, Mr. Brown's motion was denied without any hearing or explanation. Mr. Brown then filed a timely notice of appeal in his § 2255 proceeding, and requested a motion for a Certificate of Appealability ("COA") on the issue of whether he was entitled to a resentencing hearing. The District Court denied Mr. Brown's motion, but this Court granted him a COA on the issue now before us.

Consistent with its judgment in Mr. Brown's § 2255 case (the civil proceeding), the District Court entered an amended judgment in Mr. Brown's criminal case. The "Statement of Reasons" entered by the District Court in connection with the new 10–year sentence showed that Mr. Brown's new sentencing guideline range was 77 to 96 months, and noted that his old sentence was "vacated." It also noted the District Court was imposing an upward variance and sentencing Mr. Brown to a 120–month term of imprisonment. Mr. Brown filed a timely notice of appeal in his criminal case, in addition to the one already filed in the § 2255 proceeding. Mr. Brown argued that because the District Court failed to give him a resentencing hearing, it (1) didn't properly consider the factors it is required to consider under 18 U.S.C. § 3553(a)¹ ; and (2) didn't consider his post-sentencing conduct. This Court consolidated Mr. Brown's civil and criminal appeals.

II.

In any appeal from a proceeding on a motion to vacate, set aside, or correct a sentence, we review legal issues de novo. Osborne v. Terry, 466 F.3d 1298, 1304–05 (11th Cir. 2006). We also review de novo"questions involving the legality of a criminal sentence," United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (per curiam), which includes the District Court's failure to give a specific reason for a non-guideline sentence as required by 18 U.S.C. § 3553(c)(2). United States v. Parks, 823 F.3d 990, 996 (11th Cir. 2016).

Mr. Brown argues here, as he did in the District Court, that the court erred when it resentenced him without giving him a hearing. This Court has not directly spoken to the standard of review we should use in reviewing a District Court's choice of remedy under 28 U.S.C. § 2255.

However, "[f]ederal habeas corpus practice ... indicates that a court has broad discretion in conditioning a judgment granting habeas relief." Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724 (1987). And indeed this Court has recognized "the broad, flexible power conferred by section 2255." United States v. Mixon, 115 F.3d 900, 903 (11th Cir. 1997). Other circuits have held that a District Court's choice among the remedies provided in § 2255 is reviewed for abuse of discretion. See Loher v. Thomas, 825 F.3d 1103, 1111 (9th Cir. 2016) ; Woodfox v. Cain, 805 F.3d 639, 644 (5th Cir. 2015) ; Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012) ; United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007) ; United States v. Torres–Otero, 232 F.3d 24, 29–30 (1st Cir. 2000) ; United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998).

We like the approach of our sister circuits and will also review the District Court's choice of § 2255 remedy for an abuse of discretion. In doing so, we recognize there may be more than one choice of remedy available to a District Court in any given case. See United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). As always, however, a court abuses its discretion if it makes a choice that is contrary to law. See Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1238 (11th Cir. 2007). And, as discussed below, the Constitution's requirement that a defendant be present at critical stages of proceedings restricts a District Court's choice of remedy.

III.

When a court grants a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, the statute provides that the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). The statute thus establishes a two-step process. First, the court must "vacate and set the judgment aside." Id. Second, the court must choose from among four distinct remedies: (1) discharge the prisoner; (2) resentence the prisoner; (3) grant the prisoner a new trial; or (4) correct the prisoner's sentence. Id. This case requires us to address when a court may summarily correct a sentence and when it is required to conduct a resentencing hearing.

We begin with the recognition that this Court's precedent has not been entirely consistent in its use of the terms "resentence" and "correct." In reviewing how other circuit courts address this question, we see that the First Circuit has observed "[a]ny alteration of the original judgment imposing the sentence could be called a ‘resentencing’—the word has no definitive meaning." United States v. Bryant, 643 F.3d 28, 32 (1st Cir. 2011). And our own cases have used the term "resentencing" to refer to a range of sentence modification procedures. In one case, our predecessor court appears to define a "resentencing" as necessarily requiring a resentencing hearing. See Johnson v. United States, 619 F.2d 366, 368–69 (5th Cir. 1980).² In another, we use a broader definition of "resentencing," suggesting that the right to be present does not extend to all resentencings, but only "resentencing under certain circumstances." See United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991). Clarity in this context retreats further, because the definition of a sentence "correction" under Federal Rule of Criminal Procedure 35 has shifted substantially since key cases on this issue were decided. Before 1987, Rule 35 could be used to "correct an illegal sentence at any time." See Jackson, 923 F.2d at 1496 n.1 (quotation omitted). Now, however, Rule 35 allows a court to "correct"...