United States v. Nichols

• Citation: 897 F.3d 729
• Decision Date: 30 July 2018
• Docket Number: No. 17-5580,17-5580
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry D. NICHOLS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

897 F.3d 729

UNITED STATES of America, Plaintiff-Appellee,
v.
Larry D. NICHOLS, Defendant-Appellant.

No. 17-5580

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 30, 2018

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, J., delivered the opinion of the court in which SARGUS, D.J., joined. BATCHELDER, J. (pp. 738–46), delivered a separate dissenting opinion.

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.

BACKGROUND

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 , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Supreme Court later held that the Johnson rule applies retroactively, Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), thereby permitting Defendant to challenge his enhanced sentence under the ACCA. Defendant then filed a motion under

897 F.3d 733

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.

DISCUSSION

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, 128 S.Ct. 586, 169 L.Ed.2d 445 (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, 128 S.Ct. 586. 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 120 S.Ct. 2348. "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, 116 S.Ct. 1589, 134 L.Ed.2d 809 (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

897 F.3d 734

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...