United States v. Richardson, s. 17-2157/2183

• Decision Date: 11 October 2018
• Docket Number: Nos. 17-2157/2183,s. 17-2157/2183
• Citation: 906 F.3d 417
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank RICHARDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

906 F.3d 417

UNITED STATES of America, Plaintiff-Appellee,

v.Frank RICHARDSON, Defendant-Appellant.

Nos. 17-2157/2183

United States Court of Appeals, Sixth Circuit.

Argued: August 1, 2018

Decided and Filed: October 11, 2018

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.

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. ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 , ––– U.S. ––––, 136 S.Ct. 1157, 194 L.Ed.2d 164 (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 sentence. Richardson appeals that decision.

II.

A.

To start, we must interpret our order, which remanded the case to the district court for reconsideration of Richardson’s sentence after Johnson . We interpret a remand de novo. United States v. Moore , 131 F.3d 595, 598 (6th Cir. 1997). Under our mandate rule, the scope of the remand issued by the court of appeals binds the district court. United States v. Campbell , 168 F.3d 263, 265 (6th Cir. 1999). And a district court is "without jurisdiction to modify or change the mandate." Tapco Prod. Co. v. Van Mark Prod. Corp ., 466 F.2d 109, 110 (6th Cir. 1972).

Remands can be limited or general. A limited remand "explicitly outline[s] the issues to be addressed by the district court and create[s] a narrow framework within which the district court must operate." Campbell , 168 F.3d at 265. A general remand "permits the district court to redo the entire sentencing process, including considering new evidence and issues." United States v. McFalls , 675 F.3d 599, 604 (6th Cir. 2012). Richardson contends that we issued a general remand, which would allow us to consider his allegations of error from the original trial as well as his Johnson -related arguments. The government, by contrast, asserts that our remand was limited and thus precludes the court from considering any issue unrelated to Johnson and its effect on Richardson’s sentence.

A remand is presumptively general. United States v. Woodside , 895 F.3d 894, 899 (6th Cir. 2018). To overcome that presumption, we must "convey clearly our intent to limit the scope of the district court’s review with language that is in effect, unmistakable." Id. (internal alterations, citations, and quotations omitted). A court need not use magic words to create a limited remand, nor must it include limiting language in the relevant order. Rather, language narrowing the scope of the remand "may be found ‘anywhere in an opinion or order, including a designated paragraph or section, or certain key identifiable language.’ " Id. at 900 (quoting United States v. Orlando , 363 F.3d 596, 601 (6th Cir. 2004) ). In addition to the limiting language itself, the context of that language is also important. Indeed, we have repeatedly held that a court must also rely on the broader context of the opinion to determine whether the remand is limited. See, e.g. , United States v. Patterson , 878 F.3d 215, 217 (6th Cir. 2017) (explaining that the court must look to the "broader context of the opinion" when interpreting the remand); Campbell , 168 F.3d at 267–68 ("The key is to consider the specific language used in the context of the entire opinion or order.").

Our order’s plain language shows that we remanded the matter for the limited purpose of determining whether Richardson’s sentence is constitutional after Johnson . The order’s penultimate sentence explains the basis for the remand: "Because any Johnson -based challenges to his sentence that Richardson may have are entirely novel, it is appropriate to allow the district court to consider those challenges in the first instance." Richardson , slip op. at 2 (emphasis added). The order concludes, "Richardson’s sentence is hereby VACATED, and we REMAND to the district court for reconsideration of Richardson’s sentence in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)." Id. The order does not open the door to any argument about Richardson’s sentence. Rather, it narrows the district court’s review to Johnson -related arguments that Richardson necessarily could not have raised at trial or on his first appeal to this court.

And the context bolsters the conclusion that we issued a limited remand. The order acknowledges that Richardson raised several issues on his first appeal, stating, "we issued an opinion and judgment rejecting those arguments and affirming Richardson’s conviction and sentence in full." Richardson , slip op. at 1. The only intervening event between our 2015 decision affirming Richardson’s conviction and sentence and our 2016 order was the Supreme Court’s decision in Johnson . But Johnson does not affect any of the alleged errors related to Richardson’s indictment and the trial court’s jury instructions. Thus, the order does not identify any of Richardson’s other alleged errors as issues for consideration on remand.

Because this court’s order operated as a limited remand, it narrowed the district court’s focus to determining whether Richardson’s sentence is constitutional after Johnson . The order foreclosed the district court from considering any other issue.

B.

Richardson advances three arguments related to his conviction and sentence under § 924(c) that are unrelated to the Supreme Court’s decision in Johnson . He argues that the trial court (1) erred in instructing the jury on the necessary elements to convict under § 924(c) ; (2) erroneously instructed the jury about the necessary predicate offenses underlying the § 924(c) counts; and (3) added two years to his sentence under § 924(c) for having "brandished" a firearm, even though he was charged with the lesser "use-and-carry" offense. These errors are not properly before this court.

First, as noted above, our order limited the district court’s inquiry to determining whether § 924(c) is constitutional under Johnson . When we issue a limited remand, the district court is "bound to the scope of [that] remand." Campbell , 168 F.3d at 265. Indeed, a district court "is without authority...