United States v. McFalls

• Decision Date: 30 March 2012
• Docket Number: No. 10–6238.,10–6238.
• Citation: 675 F.3d 599
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Robby Lee McFALLS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

675 F.3d 599

UNITED STATES of America, Plaintiff–Appellee,

v.Robby Lee McFALLS, Defendant–Appellant.

No. 10–6238.

United States Court of Appeals, Sixth Circuit.

Argued: Feb. 28, 2012.Decided and Filed: March 30, 2012.

ARGUED: Andrew C. Brandon, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Braden H. Boucek, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Andrew C. Brandon, C. Douglas Thoresen, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Matthew J. Everitt, Assistant United States Attorney, Nashville, Tennessee, for Appellee.Before: MERRITT and ROGERS, Circuit Judges; POLSTER, District Judge.^*

OPINION

DAN AARON POLSTER, District Judge.

This is the second time this case is before this Court. Defendant Robert McFalls previously appealed the district court's determination that he was a career offender under United States Sentencing Guidelines § 4B1.1. He was successful in that appeal; upon remand, however, he was given a sentence that likely increased his period of incarceration by as much as six years. He now appeals the new sentence. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Robby McFalls committed a string of armed robberies in 2002 and 2003 in South Carolina and Tennessee. He was convicted of the South Carolina robberies in state court and sentenced to 25 years. The United States then brought charges against him for the Tennessee robbery, alleging one count of bank robbery in violation of 18 U.S.C. § 2113(d) (“Count 1”) and one count of carrying a firearm during the robbery in violation of 18 U.S.C. § 924(c)(1) (“Count 2”). McFalls pled guilty to both counts.

On June 27, 2008, McFalls was sentenced by United States District Court Judge Robert L. Echols. Judge Echols determined that McFalls was a career offender, under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, on the basis of two prior convictions for crimes of violence. That determination affected the sentencing guideline range for Count 1. Without the career offender status, McFalls's guideline range would have been 77 to 96 months; with the career offender status, the guideline range was 188 to 235 months. Judge Echols sentenced McFalls to the low end of the latter range: 188 months.

As to Count 2, Judge Echols sentenced McFalls to 84 months. He further ordered the 188–month sentence for Count 1 to run concurrently with McFalls's 25–year South Carolina sentence and ordered the 84–month sentence for Count 2 to run consecutively to Count 1 and the South Carolina sentence.¹ The Government did not object to the sentence.

McFalls timely appealed his classification as a career offender, challenging Judge Echols's determination that he had two prior convictions for crimes of violence. We found merit in McFalls's argument and remanded for further proceedings. United States v. McFalls, 592 F.3d 707 (2010). The last sentence of our opinion reads:

For these reasons, McFalls' case is remanded to the district court for resentencing, following further review of any sources permitted under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to determine whether McFalls' prior convictions were for crimes of violence under the Guidelines.

McFalls, 592 F.3d at 717.

The Government did not cross-appeal. Indeed, the issue of whether McFalls was a career offender under U.S.S.G. § 4B1.1 was the only issue before the Sixth Circuit.

A. Resentencing hearing

A few months after this Court issued its opinion, but before resentencing, Judge Echols recused himself, and the case was randomly reassigned to District Judge William J. Haynes, Jr. The Government decided to abandon its prior contention that McFalls was a career offender. Accordingly, because McFalls was no longer considered a career offender, the appropriate guideline range for Count 1 dropped to 77–96 months. The career offender status had no effect on the sentencing range for Count 2, and both sides agreed, as before, that McFalls would be subject to an 84–month mandatory minimum, to run consecutively to the sentence for Count 1.

The resentencing hearing was held on September 17, 2010. Both sides agreed on the appropriate range for Count 1, but they disagreed about where in the range the sentence should fall. McFalls sought a sentence at the low end, to be congruent with the original sentence, which was at the low end of the career-offender range. The Government sought a sentence at the high end. Judge Haynes sided with McFalls and sentenced him to 77 months.

One aspect of the new sentence, however, upset McFalls and is the basis of this appeal. At the resentencing hearing, the Government requested that the sentence for Count 1 run consecutively to McFalls's 25–year state sentence. McFalls objected because under the original sentence the 188–month term for Count 1 was ordered to run concurrently to his undischarged state sentence. McFalls took the position that our remand was a limited one, thereby constraining Judge Haynes on resentencing. The Government argued the remand was general, giving Judge Haynes the authority to revisit all aspects of the sentence.

Judge Haynes agreed with McFalls that the Sixth Circuit's remand was limited. Nonetheless, Judge Haynes opted not to abide by the original judge's decision to run the sentence for Count 1 concurrently to the state sentence. Instead, Judge Haynes ordered the 77–month sentence for Count 1 to run consecutively to the state-court sentence. In justifying his decision, Judge Haynes stated on the record:

The Court imposes this sentence considering all of the factors under [U.S.S.G. § ] 3553(a) that were in the presentence report, that were in the parties' submissions, the Sixth Circuit opinion, the supplemental report. There was an issue about some evidentiary issues on post conviction evidence. The Court has divorced itself from that in imposing this sentence.

(R. 99 at 47).

When defense counsel asked Judge Haynes why he imposed the sentence for Count 1 to run consecutively to the state sentence, as opposed to concurrently, as the original judge had done, Judge Haynes responded:

Well, from my review of the original case ... it is the extent of [McFalls's] criminal history ... it was the nature of the violent offense. This is not only a bank robbery, but an armed bank robbery, and brandishing of a weapon ... in a very threatening manner.

(Id.).

Defense counsel took issue with the ruling, pointing out that Judge Haynes considered the same evidence and the same record—indeed the same criminal history—as the original sentencing judge. Why, then, the difference, McFalls's attorney wondered? Judge Haynes: “[T]hat's the original sentence I would have imposed. If I had been there at the original sentence.” (Id. at 56).

The effect of Judge Haynes's decision to run Count 1 consecutively to the state sentence was significant. Under the original sentence, the South Carolina sentence of 25 years would have consumed almost the entire sentence for Count 1—since Count 1 was ordered to run concurrently to the state sentence—after which McFalls would have served 84 months for Count 2. Under the new sentence, by contrast, McFalls has to serve out his 25–year state sentence, plus another 77 months for Count 1, plus the 84 months for Count 2. The net effect, according to McFalls, is that he will spend more time in prison—perhaps six years more ²—under the new sentence than he would have under the original sentence. And that's after winning his appeal.

II. ANALYSISA. Nature of the remand

McFalls argues that this Court issued a limited remand by explicitly outlining the sole issue to be addressed by the district court at resentencing—whether his prior convictions were for crimes of violence—and by creating a narrow framework within which the district court had to operate. Accordingly, the argument goes, Judge Haynes exceeded the bounds of that remand when he reversed the original judge's decision to run the sentence for Count 1 concurrently with the state sentence.

Under 28 U.S.C. § 2106, courts of appeals may issue either general or limited remands. United States v. Hunter, 646 F.3d 372, 374 (6th Cir.2011). A general remand permits the district court to redo the entire sentencing process, including considering new evidence and issues. United States v. Moore (“Moore II”), 131 F.3d 595, 597 (6th Cir.1997). A limited remand, by comparison, does not allow a de novo resentencing and instead constrains the district court's authority to the issue or issues adjudicated. Id. at 598.

The question of whether a remand is limited or general is a legal question that this Court reviews de novo. United States v. Gibbs, 626 F.3d 344, 350 (6th Cir.2010).

Unless otherwise specified, a remand order is presumed to be general. United States v. Helton, 349 F.3d 295, 299 (6th Cir.2003); Moore II, 131 F.3d at 598. A remand is limited, however, when the Court's mandate is so narrow in scope as to preclude the district court from considering a particular issue. United States v. Campbell, 168 F.3d 263, 266 (6th Cir.1999) (quoting United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994)).

A limited remand must explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate. Gibbs, 626 F.3d at 350 (quoting Campbell, 168 F.3d at 265). It must convey clearly the intent to limit the scope of the district court's review. Campbell, 168 F.3d at 267. This intent is achieved by outlining the procedure the district court is to follow, articulating the chain of intended events with particularity, and leaving no doubt as to the scope of the remand. Id. at 268. The language used to limit the remand should be unmistakeable. Gibbs, 626 F.3d at 350–51 (quoting Campbell, 168 F.3d at 268).

McFalls makes much of the fact that this Court's prior opinion addressed a single sentencing issue: his classification as a career...