United States v. Richardson

• Decision Date: 27 January 2020
• Docket Number: Nos. 17-2157/2183,s. 17-2157/2183
• Citation: 948 F.3d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank RICHARDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

948 F.3d 733

UNITED STATES of America, Plaintiff-Appellee,

v.Frank RICHARDSON, Defendant-Appellant.

Nos. 17-2157/2183

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 27, 2020

ON SUPPLEMENTAL 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.

We must give credit when it is due. Twice, Frank Richardson has successfully persuaded the Supreme Court to vacate our judgments affirming his conviction and sentence for a string of armed robberies in Detroit. Both times, the Supreme Court remanded Richardson’s case to this court and—though not reversing our decisions on the merits—instructed us to consider whether an intervening Supreme Court decision or new legislation affected his conviction under 18 U.S.C. § 924(c).

After we first affirmed Richardson’s conviction and sentence, the Supreme Court asked us to consider whether its decision in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) affected Richardson’s conviction under § 924(c). Richardson argued that the clear import of Johnson , which held that the Armed Career Criminal Act’s residual clause is unconstitutionally vague, was that § 924(c) ’s similarly (but not identically) worded residual clause was also void for vagueness. But we held that Richardson’s underlying conduct—aiding and abetting Hobbs Act robbery—satisfied § 924(c) ’s elements clause, a separate basis for conviction, and thus affirmed his conviction and sentence.

Richardson petitioned for certiorari again, and while his petition was pending, the First Step Act of 2018 became law. That Act makes several changes to sentencing law, including a major change in the way courts sentence repeat offenders under § 924(c). So Richardson filed a supplemental brief in support of his certiorari petition, and in turn, the Supreme Court granted Richardson’s petition, vacated our judgment, and remanded the case to this court with instructions to consider whether the Act affects Richardson.

We begin by reissuing our earlier decision (with a few non-substantive changes) affirming Richardson’s conviction. As to the most recent remand, we hold that Richardson cannot benefit from the First Step Act because the district court resentenced him more than one year before the Act became law. As a result, we also affirm Richardson’s sentence.

I.

Frank Richardson participated in a series of armed robberies of electronics stores in and around Detroit, Michigan, between February and May 2010. United States v. Richardson , 793 F.3d 612, 618 (6th Cir. 2015), judgment vacated , ––– U.S. ––––, 136 S. Ct. 1157, 194 L.Ed.2d 164 (2016) (" Richardson I "). Richardson planned each heist and served as a lookout, although he never entered a store while a robbery occurred. Id. Even so, at least one robber used a gun during each robbery. Id. Law enforcement apprehended Richardson shortly after he participated in 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 under 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 under § 924(c), and one count of being a felon in possession of a firearm under 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. Id. at 617.

While Richardson’s appeal was pending, the Supreme Court decided Johnson , holding that the Armed Career Criminal Act’s residual clause is unconstitutionally vague. 135 S. Ct. at 2563. Although the jury did not convict Richardson under ACCA, he petitioned for certiorari, arguing that § 924(c) ’s residual clause—though not identical to ACCA’s residual clause—is similarly vague. 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, 1157, 194 L.Ed.2d 164 (2016). In turn, we issued an order that vacated Richardson’s sentence and remanded 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, at *2 (6th Cir. Aug. 29, 2016) ("Richardson Remand ").

In September 2017, the district court held a resentencing hearing and reinstated Richardson’s original sentence. Richardson appealed, and in October 2018, we issued another opinion affirming the district court’s reinstatement of his original sentence. United States v. Richardson , 906 F.3d 417, 421 (6th Cir. 2018), judgment vacated , ––– U.S. ––––, 139 S. Ct. 2713, 204 L.Ed.2d 1107 (2019) (" Richardson II ").

Once more, Richardson petitioned the Court for certiorari, and while that petition was pending, Congress passed the First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194 (2018). Because one part of the First Step Act changes how courts sentence defendants convicted of multiple counts under § 924(c), Richardson filed a supplemental brief in support of his petition, claiming he is entitled to relief under the Act. Again, the Court granted Richardson’s petition, vacated our judgment, and remanded the case for this court "to consider the First Step Act of 2018." Richardson v. United States , ––– U.S. ––––, 139 S. Ct. 2713, 2713–14, 204 L.Ed.2d 1107 (2019).

II.

A.

We begin with the first Supreme Court remand from 2016, which asked us to consider Richardson’s § 924(c) conviction given Johnson . In response to that order, we remanded the case, too, instructing the district court to examine whether Johnson affected Richardson’s sentence under § 924(c).

The parties disagree about the scope of our remand and—specifically—whether we opened the door for Richardson to raise other issues related to his conviction. 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. We interpret our remand de novo, see, e.g. , United States v. Moore , 131 F.3d 595, 598 (6th Cir. 1997), and underscore that the scope of our remand binds the district court. United States v. Campbell , 168 F.3d 263, 265 (6th Cir. 1999). Indeed, a district court is "without jurisdiction to modify or change the mandate." Tapco Prods. Co. v. Van Mark Prods. Corp ., 466 F.2d 109, 110 (6th Cir. 1972).

Remands can be limited or general, although courts operate under the rebuttable presumption that a remand is general. United States v. Woodside , 895 F.3d 894, 899 (6th Cir. 2018). 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). By contrast, 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.

To overcome the presumption that a remand is general, we must "convey clearly our intent to limit the scope of the district court’s review with language that is in effect, unmistakable." Woodside , 895 F.3d at 899 (internal alterations, citations, and quotation marks omitted). But the court need not use magic words to limit the scope of its remand. Id. at 900. For that matter, it makes no difference where the limiting language appears in the order. Id. 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. (quoting United States v. Orlando , 363 F.3d 596, 601 (6th Cir. 2004) ). And context is also instructive: We have repeatedly held that the court should "consider the specific language used in the context of the entire opinion or order" when interpreting the scope of the remand. Campbell , 168 F.3d at 267–68 ; see also 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).

Our order’s plain language makes clear that we remanded the matter only to determine whether Johnson affects Richardson’s sentence under § 924(c). 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 Remand 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 but 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.

Context also bolsters the conclusion that we issued a limited remand. Our 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." Id. at *1. The only intervening event between Richardson I and our 2016 order was the Supreme Court’s decision in Johnson . But that decision does not affect any of the alleged errors related to Richardson’s indictment and the trial court’s jury...