RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0144p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-4085
v.
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Defendant-Appellant. -
CHRISTOPHER J. HUNTER,
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Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 06-00061-001—Thomas M. Rose, District Judge.
Argued: May 11, 2011
Decided and Filed: May 25, 2011
Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.*
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COUNSEL
ARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Benjamin C. Glassman,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
ON BRIEF: Dennis Belli, Columbus, Ohio, for Appellant. Vipal J. Patel, ASSISTANT
UNITED STATES ATTORNEY, Dayton, Ohio, for Appellee.
MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined.
GWIN, D. J. (pp. 7-9), delivered a separate dissenting opinion.
*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
No. 09-4085 United States v. Hunter Page 2
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. This is Christopher Hunter’s second
appeal. In our prior opinion we reversed Hunter’s conviction and sentence for violating
18 U.S.C. § 924(c)(1) because the proceedings at trial constructively amended his
indictment. However, we affirmed Hunter’s other convictions and the thirty-year
sentence he received for those counts. On remand the United States agreed to not pursue
the section 924(c) charge. The district court vacated the sentence for that count by
written order without allowing Hunter to personally appear or re-allocute. Hunter
appeals arguing that the district court erred by not conducting a plenary resentencing
hearing. However, because our initial opinion limited the district court to considering
only Hunter’s section 924(c) charge, which the United States declined to pursue, there
was no sentencing to be done. We therefore AFFIRM.
I.
This case is the subject of a prior appeal. See United States v. Hunter, 558 F.3d
495 (6th Cir. 2009). The facts of this case are laid out in greater detail in that opinion
and we highlight here only those most pertinent to the resolution of this issue.
A jury convicted Hunter of possession of cocaine with the intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), conspiracy to distribute in excess of five kilograms
of cocaine, in violation of 21 U.S.C. § 846, possession of a firearm in furtherance of a
drug crime, in violation of 18 U.S.C. § 924(c)(1), and being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Hunter to
thirty years of imprisonment for the drug counts and felon-in-possession count. The
district court also imposed a mandatory, five-year term of imprisonment for Hunter’s
section 924(c) conviction.
Hunter raised a host of issues on appeal and we found that most were not
meritorious. However, we vacated his section 924(c) conviction and remanded the case
No. 09-4085 United States v. Hunter Page 3
to the district court for further proceedings with respect to that charge. Specifically, our
initial remand order in this case, 558 F.3d at 508, read as follows:
For the foregoing reasons, we REVERSE Hunter’s conviction and
sentence for violating 18 U.S.C. § 924(c)(1), but we AFFIRM Hunter’s
other convictions and sentences. Accordingly, we REMAND for such
further proceedings consistent with this opinion as are necessary.
On remand the United States informed the district court that it did not intend to
proceed on the section 924(c) charge. The district court held that our opinion limited the
remand to only the section 924(c) charge and, because we vacated Hunter’s conviction
and the United States declined to pursue that charge, “there [was] nothing left for the
Court to consider in a re-sentencing.” Therefore, in a written order, the district court left
Hunter’s thirty-year sentence, which this Court had affirmed, intact and vacated the
consecutive five-year sentence it had imposed for the section 924(c) conviction.
II.
Initially, we must determine the scope of our prior remand in this matter. This
court reviews the scope of a remand de novo. United States v. Orlando, 363 F.3d 596,
600 (6th Cir. 2004). Courts of appeal may order limited or general remands. See 28
U.S.C. § 2106. “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.” United States v. Obi, 542 F.3d 148, 154 (6th Cir. 2008) (citation and internal
quotation marks omitted). “General remands, in contrast, give district courts authority
to address all matters as long as remaining consistent with the remand.” Id. (citation
omitted); see United States v. Garcia-Robles, – F.3d —, No. 09-1980, 2011 WL
1753303, at *5 (6th Cir. May 10, 2011).
When a court simply vacates a sentence and remands for “resentencing,” or
“resentencing consistent with this opinion,” that will typically be a general remand. See,
e.g., Garcia-Robles, 2011 WL 1753303, at *4; Obi, 542 F.3d at 154; United States v.
Moore, 131 F.3d 595, 598 (6th Cir. 1997) (Moore III). This Court very recently held
that “upon general remand, when a sentence has been vacated on direct appeal, the
No. 09-4085 United States v. Hunter Page 4
defendant is entitled to a resentencing hearing where he may exercise the right to be
present and allocute as provided by Rules 32 and 43 of the Federal Rules of Criminal
Procedure.” Garcia-Robles, 2011 WL 1753303, at *4. However, by affirming Hunter’s
other convictions and sentences, our earlier opinion specifically limited the scope of the
remand to Hunter’s section 924(c) charge and the separate sentence he received on that
count.
We addressed a very similar issue in Moore III. There, the defendant initially
appealed his conviction and sentence for possession of marijuana with intent to distribute
and for use of firearms in connection with drug trafficking in violation of section
924(c)(1). United States v. Moore, 70 F.3d 1273, No. 94-6591, 1995 WL 704162, at *1
(6th Cir. Nov. 28, 1995) (Moore I). We affirmed the defendant’s convictions and
sentences. However, we subsequently granted Moore’s petition for rehearing because
the Supreme Court endorsed a narrower definition of use of a firearm under section
924(c)(1) than we had applied previously. United States v. Moore, 76 F.3d 111, 114 (6th
Cir. 1996) (Moore II). In light of this new authority, we vacated the defendant’s section
924(c) conviction and remanded the matter to the district court to determine whether
sufficient evidence supported his conviction under this section in light of the Supreme
Court’s then-recent decision. Id. However, we adhered to our previous decision in all
other respects. Specifically, the remand order in that case, id., stated:
We therefore VACATE Moore’s section 924c(c)(1) conviction and
REMAND for further proceedings, in which both parties can have the
opportunity to focus on the facts and law relevant to proving that Moore
used or carried a firearm during and in relation to his drug trafficking
offense. We adhere to our previous opinion[, which affirmed Moore’s
conviction and sentence for possession with the intent to distribute
marijuana,] in all other respects.
On remand, the United States moved to dismiss with prejudice the defendant’s section
924(c) charge. The district court granted the motion and resentenced the defendant.
However, in imposing the new sentence, the district court increased the defendant’s
offense level by two levels for possession of firearms during the commission of a drug
crime. While this enhancement was not previously applicable because the defendant had
No. 09-4085 United States v. Hunter Page 5
been convicted and sentenced for violating section 924(c), now that he no longer stood
convicted under that section, this enhancement could be applied. The defendant’s total
sentence was still less than he had initially received with the section 924(c) conviction,
but the two-level enhancement resulted in the defendant receiving a sentence of eight
months longer than he initially received for the drug counts. Moore III, 131 F.3d at 597.
We reversed and remanded because the district court exceeded the scope of the remand
order in Moore II. That order did not permit the district court to resentence the
defendant on the other counts, and we instructed it to reimpose the sentence it had
initially imposed on the drug counts. Id. at 599-600.
Similarly, our remand order in this case did not permit the district court to
resentence Hunter on his underlying drug convictions. Just as we restricted the district
court in Moore II to considering only the defendant’s section 924(c) charge, our remand
order in the original panel decision in this case had the same effect.1 Although Hunter
argues that he should have been present at the sentencing hearing and given the
opportunity to allocute, and that the district court erred by not announcing the sentence
in open court, there was no sentence to impose. The district court could not have
resentenced Hunter on the other counts and imposed no sentence on the section 924(c)
charge, which we vacated and the United States decided not to pursue. Therefore, the
district court correctly did not conduct a plenary resentencing in this case.2
Additionally, while Hunter argues that a de novo resentencing is required
because the district court relied on his now-vacated 924(c) conviction in imposing a
sentence for the other counts, the district court’s resentencing opinion explicitly
repudiates that conclusion. The district court stated it did not use any “specific offense
1
The dissent points out that our initial remand order in this case was not facially as restrictive as
the remand order in Moore II. However, the dissent does not explain how the district court would have
had authority to resentence Hunter after we had affirmed the sentence he received for the counts for which
he was properly convicted.
2
We do not address whether a district court would be required to conduct a plenary resentencing
hearing if, for example, we affirmed a defendant’s section 924(c) conviction and sentence, but remanded
for resentencing on the other counts for which he or she was convicted. In that situation, even though the
mandate would be “limited,” under Garcia-Robles it may be necessary to conduct a de novo sentencing
hearing on the particular counts that were remanded without limitation for resentencing.
No. 09-4085 United States v. Hunter Page 6
characteristics nor any enhancements nor adjustments of any sort relating to possession
or use of a gun . . . in computing [Hunter’s] sentence.”
The district court remarked that it still considers “possession of a weapon while
in a drug transaction serious,” but that is not inconsistent with our decision to vacate
Hunter’s section 924(c) convictions. We vacated those convictions because of errors in
the indictment and jury instructions. However, the evidence shows that Hunter
possessed a gun at various points in connection with his drug dealing. Even though a
procedural defect led us to vacate Hunter’s section 924(c) conviction, the district court
was still within its discretion to consider Hunter’s gun possession when imposing a
sentence for the other counts.
III.
Our initial remand order limited the district court to considering only Hunter’s
section 924(c) convictions and it properly did not resentence Hunter on the other counts
for which he was convicted. Therefore, we AFFIRM the judgment.
No. 09-4085 United States v. Hunter Page 7
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DISSENT
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GWIN, District Judge, dissenting. The majority concludes that “by affirming
Hunter’s other convictions and sentences, our earlier opinion specifically limited the
scope of the remand to Hunter’s section 924(c) charge and the separate sentence he
received on that count.” Maj. Op. at 4. Although a close call, and although the district
court could reasonably believe we had limited the remand to the 924(c)(1) charge, I find
no sufficiently specific limitation in our initial remand order. Because I believe our
initial remand order was therefore a general remand, I respectfully dissent.
Under 28 U.S.C. § 2106, we may issue either a limited or general remand to the
district courts. United States v. Moore (Moore III), 131 F.3d 595, 597 (6th Cir. 1997).
This Court has consistently held that to issue a limited remand, courts of appeal must
“sufficiently outline the procedure the district court is to follow. The chain of intended
events should be articulated with particularity.” United States v. Campbell, 168 F.3d
263, 268 (6th Cir. 1999); see also United States v. Garcia-Robles, --- F.3d ----, No. 09-
1980, 2011 WL 1753303, at *5 (6th Cir. May 10, 2011). On sentencing matters in
particular, we have instructed that “in light of the general principle of de novo
consideration at resentencing, this court should leave no doubt in the district judge’s or
parties’ minds as to the scope of the remand. The language used to limit the remand
should be, in effect, unmistakable.” Campbell, 168 F.3d at 268; see also United States
v. Gibbs, 626 F.3d 344, 350-51 (6th Cir. 2010) (same).
Our initial remand order here vacated Hunter’s 18 U.S.C. § 924(c)(1) conviction
and sentence, and it affirmed his other convictions and sentences. United States v.
Hunter, 558 F.3d 495, 499 (6th Cir. 2009). But it also closed with general boilerplate
language remanding “for such further proceedings consistent with this opinion as are
necessary.” Id. Even when read in the context of our entire opinion, I do not find that
this language articulates a limiting framework in the “unmistakable” terms necessary to
No. 09-4085 United States v. Hunter Page 8
conclude, as the majority does, that the remand was a limited one.1 See Gibbs, 626 F.3d
at 350-51 (finding a general remand where, “although we identified a discrete sentencing
issue that required remand, our opinion did not articulate a framework for the
proceedings on remand or otherwise limit the district court’s inquiry to that issue in
unmistakeable terms.”). Because our initial remand order was ambiguous as to its
intended scope, it is presumptively a general remand. See Garcia-Robles, 2011 WL
1753303, at *5 (“Accordingly, when no express limitations are given, a remand is
presumed to be general.” (citing Moore III, 131 F.3d at 598)); see also Campbell, 168
F.3d at 268 (same).
Moreover, this Court’s recent holding in United States v. Garcia-Robles dictates
that where, as I believe is the case here, a defendant’s sentence is vacated on direct
appeal and a general remand order is issued, the defendant has a right to be present and
reallocute at resentencing. 2011 WL 1753303, at *4, *5. Despite his request, Hunter did
not receive the right to address the district court before resentencing, for whatever effect
it might have had. The Supreme Court has held that district courts may consider post-
sentencing rehabilitation in support of a downward variance from the advisory Federal
Sentencing Guidelines range. United States v. Pepper, --- U.S. ----, 131 S. Ct. 1229,
1241 (2011). Similarly, as the Pepper Court noted, district courts may consider
postsentencing conduct that supports a higher sentence at resentencing. Id. at 1229
(citing Wasman v. United States, 468 U.S. 559, 572 (1984)).
The district court stated that it did not rely on Hunter’s § 924(c)(1) conviction
when sentencing him on any other counts and that the absence of the § 924(c)(1)
conviction would not alter those other sentences. With the dismissal of the § 924(c)(1)
1
The majority relies on Moore III to support its conclusion that our initial remand here was a
limited one. After vacating and remanding the defendant’s § 924(c)(1) conviction in that case, we faced
a similar challenge to the scope of our remand. As the majority correctly explains, we found that the
district court had exceeded the scope of the remand order in United States v. Moore (Moore II), 76 F.3d
111 (6th Cir. 1996), which did not permit the district court to resentence the defendant on anything other
than the § 924(c)(1) conviction. In that case, however, we issued a remand order that did specifically limit
the scope of remand: “We . . . REMAND for further proceedings, in which both parties can have the
opportunity to focus on the facts and law relevant to proving that Moore used or carried a firearm during
and in relation to his drug trafficking offense.” Moore II, 76 F.3d at 114. We did not set forth similar
guidance for the district court’s proceedings on remand here.
No. 09-4085 United States v. Hunter Page 9
count and given what I believe was a general remand, I believe the district court should
consider Hunter’s statements but would also be free to consider a correctly calculated
Guidelines recommended range.2 Here, there is no indication that the district court
considered any post-sentencing factors relevant to a downward variance or an increased
sentence, which the parties may have presented at de novo resentencing, in reaching this
conclusion.
Because I find the language of our initial remand order insufficient to create a
limited remand, and because our general remand accordingly granted Hunter the right
to reallocute at resentencing, I would remand for de novo resentencing.
2
Because of the § 924(c)(1) conviction, the District Court had not originally determined whether
Hunter should receive a two level increase in his Guidelines calculation under U.S.S.G. § 2D1.1.