ON REHEARING
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-7508
DONATHAN WAYNE HADDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-98-156; CA-02-334-22-4)
Argued: October 25, 2006
Decided: February 7, 2007
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Widener and Judge Traxler joined.
COUNSEL
ARGUED: David Bruce Betts, Columbia, South Carolina, for Appel-
lant. Alfred William Walker Bethea, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Flor-
ence, South Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd,
United States Attorney, Columbia, South Carolina, for Appellee.
2 UNITED STATES v. HADDEN
OPINION
WILLIAMS, Circuit Judge:
Donathan Wayne Hadden was convicted on drug and gun offenses
and received a sentence of 228 months’ imprisonment. After an
unsuccessful direct appeal, he filed a petition in the district court
under 28 U.S.C.A. § 2255 (West 1994 & Supp. 2006) alleging that his
convictions and sentence were unlawful. The district court agreed
with Hadden in part, vacated one of Hadden’s convictions, and
entered a new sentence of 168 months’ imprisonment. In entering
Hadden’s new sentence, the district court did not conduct a resentenc-
ing hearing.
Hadden now appeals his 168 month sentence, arguing that he was
entitled to a resentencing hearing and that the sentence was erroneous
under United States v. Booker, 543 U.S. 220 (2005). For the reasons
that follow, we affirm.
I.
The procedural posture of this case is complicated, due in large part
to the fact that it was percolating up from the district court during the
Supreme Court’s recent interpretations of the Sixth Amendment in
Blakely v. Washington, 542 U.S. 296 (2004) and Booker. Because
understanding the timing of these decisions in relation to Hadden’s
case is necessary to comprehend fully our resolution of this appeal,
we set forth this case’s procedural and factual history in some detail.
Beginning in 1997, with the cooperation of drug dealers Darlene
Norris and Annie Lewis, the Government began to target Jerry and
Sherrie Miller, two of Norris’s and Lewis’s large-scale buyers. In a
series of recorded telephone calls, the Millers indicated that they
knew a third party interested in purchasing two pounds of metham-
phetamine from Norris. Acting as the go-between, the Millers worked
with Norris to arrange the transaction on January 20, 1998, at the
Coastal Mall in Conway, South Carolina. On the day of the reverse
sting operation, Hadden arrived at the mall with the Millers and was
arrested. He had three loaded firearms in his truck, digital scales, and
UNITED STATES v. HADDEN 3
$3,500.00 in cash. Ultimately, the Government determined that Sher-
rie Miller’s sister, Sheryl Knight Gruber, had made the arrangement
for Hadden to buy the two pounds of methamphetamine.
By superseding indictment, Hadden was charged with conspiracy
to possess with intent to distribute and distribution of methamphet-
amine, in violation of 21 U.S.C. §§ 841(a)(1), 846, attempted posses-
sion with intent to distribute methamphetamine, in violation of 21
U.S.C. § 846 and 18 U.S.C. § 2 (collectively "the drug counts"), and
with use of a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (the 924(c) count). Hadden
pleaded not guilty and proceeded to a jury trial.
At trial, the Government called Joseph Evans as a witness. Evans
testified that over the course of various transactions, he had purchased
approximately three or four pounds of methamphetamine from Had-
den that he then resold. Evans purchased all of his methamphetamine
from Hadden, except for a one-time purchase from the Millers. On
September 5, 1997, Evans was arrested while in possession of eight
ounces of methamphetamine, which he testified came from Hadden.
After Evans’s arrest, Hadden loaned him $5,000.00 to post bond.
Hadden continued to loan Evans money in connection with his legal
fees, and Evans testified that he continued to purchase methamphet-
amine from Hadden after his arrest.
The Government also called Gruber, who testified that Evans first
introduced her to Hadden in May 1997. Gruber sold methamphet-
amine that she purchased from Evans and the Millers. In December
1997, Jerry Miller asked Gruber if she knew anyone who wanted to
buy two pounds of methamphetamine. Shortly thereafter, Gruber
asked Hadden the same question. Hadden responded that he did not
know anyone interested at that time, but later phoned Gruber and told
her to get in touch with Miller to find out if the two pounds were still
available. Gruber agreed to contact Miller and inquire whether the
two pounds of methamphetamine were still available for sale. After
a series of phone calls in which Gruber acted as the middle person,
she put Hadden in touch with Miller for them to deal directly on the
transaction.
The Government also called the Millers as witnesses. Jerry Miller
testified that he initially informed Hadden that he had one pound of
4 UNITED STATES v. HADDEN
methamphetamine for sale. Hadden indicated that he instead wanted
two pounds. Miller first met Hadden minutes before their arrest, and
it was his belief that Hadden was there to purchase two pounds of
methamphetamine. Sherry Miller likewise testified that she and her
husband met Hadden at the mall to sell him two pounds of metham-
phetamine that they were planning to get from Norris and Lewis.
The Government then called Norris and Lewis as witnesses. Norris
testified about phone calls with the Millers, which were recorded on
behalf of the Government. The Millers told Norris that they knew a
man interested in purchasing two pounds of methamphetamine for
$14,000.00 per pound. On the day of the proposed transaction, Lewis
met the Millers at the mall. The Millers told her they had to go and
meet their man. When they returned, they were followed by a man in
a white truck, who was in fact Hadden. Just prior to the arrest, Lewis
testified that Miller told her that Hadden was going to pay $32,000.00
for the drugs.
Hadden’s defense theory was that he drove 300 miles from Vidalia,
Georgia to Conway, South Carolina to pick up $400.00 that Jerry Mil-
ler owed Evans, and to attempt to sell Miller digital scales. Hadden
attempted to buttress his defense by pointing out that he only had
$3,500.00 on his person when he was arrested, far less than the
$32,000.00 purchase price of the two pounds of methamphetamine.
At the conclusion of the trial, the jury returned a guilty verdict on
all three counts of the superseding indictment.1 Hadden’s presentence
report (PSR) held him accountable for 2,684.01 grams of metham-
phetamine. Under the 1998 Guidelines, Hadden was assigned a base
offense level of 34 because the PSR assigned him a criminal history
level of II and attributed to him "[a]t least 1.5 KG but less than 5 KG
of Methamphetamine, or at least 300 G but less than 1 KG of
Methamphetamine (actual)." U.S. Sentencing Guidelines Manual
1
The jury did not attribute any specific drug weights to Hadden and the
indictment did not allege any. Although such a scenario seems implausi-
ble today, Hadden was tried and sentenced before the Supreme Court’s
decisions in Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), Ring v.
Arizona, 536 U.S. 584, 609 (2002), Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005).
UNITED STATES v. HADDEN 5
§ 2D1.1(c)(3) (1998). The PSR also recommended a two-level
upward adjustment for obstruction of justice for a total offense level
of 36. This carried with it a Guidelines range of 210 to 262 months’
imprisonment. Hadden filed objections to the PSR, arguing that the
drug weights attributable to him should be reduced by 680.4 grams
and that the two-level adjustment for obstruction of justice was
improper. He contended that he would have an adjusted offense level
of 32 if his objections were sustained.
The district court conducted a lengthy sentencing hearing at which
it attempted to address Hadden’s objections and reach a drug weight
that could be agreed upon by both parties. The district court deter-
mined that the evidence clearly demonstrated that Hadden had
attempted to purchase two pounds of methamphetamine during the
reverse sting. The district court, however, found merit in Hadden’s
primary objection to attributing an additional 680.4 grams to him, and
accordingly it removed that weight from the calculation. The district
court also sustained Hadden’s objection to the obstruction of justice
enhancement. Nonetheless, based on the two pounds from the reverse
sting and the methamphetamine that Evans received from Hadden
(some of which was laboratory tested and turned out to be 38.6%
actual methamphetamine), Hadden’s base offense level remained at
34. Based on this offense level and a criminal history level of II, Had-
den’s sentencing range was 168 to 210 months’ imprisonment.
On June 21, 1999, the district court sentenced Hadden at the low
end of the Guidelines range to 168 months’ imprisonment on each of
the drug counts (to run concurrently) and 60 months’ imprisonment
on the § 924(c) count (to run consecutively), for a total sentence of
228 months. Because Hadden’s 60 month sentence on the § 924(c)
count accounted for his gun possession during the commission of his
drug crimes, the Government was unable to seek an enhancement of
his sentence under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(1999) (setting forth an enhancement for possession of a gun during
the commission of a drug crime). See U.S. Sentencing Guidelines
Manual § 2K2.4 application n.2; United States v. Clements, 86 F.3d
599, 601 (6th Cir. 1996) (noting that if defendant is sentenced under
§ 924(c), the two-level enhancement under § 2D1.1(b)(1) is not per-
mitted so as to avoid double-counting). Hadden appealed his convic-
6 UNITED STATES v. HADDEN
tions and sentence, and we affirmed. United States v. Hadden, 217
F.3d 841 (4th Cir. July 18, 2000) (unpublished).
On February 5, 2002, Hadden filed a petition under § 2255 in the
district court raising claims of ineffective assistance of counsel relat-
ing to all three counts. As to the § 924(c) count, Hadden argued that
trial counsel was ineffective for failing to object to the jury charge
based on Bailey v. United States, 516 U.S. 137, 143 (1995) (holding
that § 924(c)’s prohibition on the "use" of a gun during the commis-
sion of a drug crime requires "active employment of the firearm by
the defendant" (emphasis omitted)). On October 3, 2002, the district
court entered an order dismissing the petition as it related to the drug
counts, but stating, "[a]s to [the § 924(c) count], if the Government
does not inform the court that it wishe[s] to retry [Hadden] . . . within
sixty (60) days, or if after so informing the court, the Government
fails to retry [Hadden] within a reasonable time, the writ will be
granted and [Hadden’s § 924(c)] conviction and sentence vacated."
(J.A. at 37.) On November 12, 2002, the district court entered an
order entitled "Judgment in a Civil Case," (R. at 28), which entered
judgment on Hadden’s § 2255 petition employing the same language
used in the district court’s written opinion. Hadden appealed that
judgment, arguing that the district court erred by denying him relief
on the drug counts.
While that appeal was pending, the Government notified the dis-
trict court that it did not intend to retry Hadden on the § 924(c) count.
It also notified the district court that it would not seek to enhance
Hadden’s sentence under § 2D1.1(b)(1), despite the fact such an
enhancement was no longer prohibited in the absence of the sixty-
month sentence on the § 924(c) count. On November 22, 2002, with-
out conducting a resentencing hearing, the district court entered an
order entitled "Amended Judgment," (J.A. at 39), which dismissed the
§ 924(c) count and effectively vacated at least a portion of Hadden’s
original 228 month sentence by entering a new 168 month sentence
on the remaining drug counts.
On December 5, 2002, Hadden filed in the district court a docu-
ment entitled "Objection to Amended Judgment," wherein he argued,
inter alia, that he was entitled to a resentencing hearing under § 2255
and Rules 32 and 43 of the Federal Rules of Criminal Procedure. In
UNITED STATES v. HADDEN 7
this filing, Hadden did not present any argument that he would have
made at a resentencing hearing regarding the proper sentence he
should have been given, but merely asserted that he had an absolute
right to such a hearing so that he could have assistance of counsel to
raise issues of downward departure. Before the district court ruled on
the Objection to Amended Judgment, we denied a Certificate of
Appealability (COA) under 28 U.S.C.A. § 2253 (West 1994 & Supp.
2006) on Hadden’s appeal of the Judgment in a Civil Case (the order
partially denying/partially conditionally granting Hadden’s § 2255
petition) and dismissed that appeal for want of jurisdiction. United
States v. Hadden, 61 F. App’x 99 (4th Cir. April 17, 2003) (unpub-
lished). The district court later construed Hadden’s "Objection to
Amended Judgment" as a motion for reconsideration and denied it.
Hadden then appealed the Amended Judgment, repeating his argu-
ment that he was entitled to a resentencing hearing. His opening brief,
like his motion for reconsideration, did not present any argument that
he would have made to the district court at a resentencing hearing
regarding the proper sentence he should be given, but merely asserted
an absolute right to such a hearing. In opposition, the Government
argued that Hadden was not entitled to a resentencing hearing because
the district court did not increase his original sentence, and that any
error in failing to hold a resentencing hearing was harmless given that
Hadden did not present any argument that he would have made to the
district court at the hearing. Before Hadden filed his reply brief, the
Supreme Court decided Blakely, which held that Washington state’s
determinate sentencing scheme violated the Sixth Amendment. 542
U.S. at 296. Hadden cited Blakely in his reply brief, contending that
if given a resentencing hearing, he would argue that his 168 month
sentence violated the Sixth Amendment as interpreted by Blakely.2
2
Hadden also stated in his reply brief that he would argue at a resen-
tencing hearing that his criminal history was improperly calculated
because one of his prior offenses violated the rule of Alabama v. Shelton,
535 U.S. 654 (2002) (holding that defendant who receives a suspended
sentence that may result in his eventual incarceration is entitled to coun-
sel in the criminal proceedings against him). Hadden, however, only
cited Shelton and made no argument how Shelton would have helped
him. He therefore waived any Shelton argument. See Fed. R. App. P.
28(a)(9)(A) (providing that "appellant’s brief must contain . . . appel-
lant’s contentions and the reasons for them"); United States v. Smith, 441
F.3d 254, 274 (4th Cir. 2006) (applying Rule 28(a)(9)(A) on criminal
appeal).
8 UNITED STATES v. HADDEN
After Hadden filed his reply brief but before we resolved the appeal,
we decided United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004)
(en banc), vacated by 543 U.S. 1097 (2005), which held that the Sen-
tencing Guidelines were not invalid under Blakely’s interpretation of
the Sixth Amendment.
On November 2, 2004, we affirmed Hadden’s 168 month sentence.
United States v. Hadden, 112 Fed.Appx. 907 (4th Cir. November 2,
2004) (unpublished), vacated by United States v. Hadden, 03-7508
(4th Cir. February 15, 2005) (order granting petition for panel rehear-
ing). In the opinion affirming Hadden’s sentence, we declined to
reach Hadden’s argument that he was entitled to a sentencing hearing
because we concluded that any error the district court committed in
failing to hold such a hearing was harmless, given that Hadden did
not present any argument that he would have made to the district
court at the hearing. Id. at 908. We observed that Hadden had stated
in his reply brief that he would make a Sixth Amendment argument
based on Blakely, but we concluded that Hadden’s Blakely argument
did not undercut our harmlessness conclusion because the argument
would have failed under Hammoud. Id. at 908 n.2.
On November 15, 2004, Hadden filed a petition for panel and en
banc rehearing, raising arguments immaterial to this appeal. Before
we ruled on the petition for rehearing, the Supreme Court decided
Booker, which held that the Sentencing Guidelines were invalid under
Blakely’s interpretation of the Sixth Amendment, and which remedied
this problem by making the Sentencing Guidelines advisory. 543 U.S.
at 220. Believing it improper post-Booker to continue to base a harm-
lessness conclusion on the then-overruled Hammoud, the panel
granted Hadden’s petition for panel rehearing and requested supple-
mental briefing on issues relating to Booker.
In his supplemental brief, Hadden argued that his amended sen-
tence was constitutionally and statutorily erroneous under Booker
because it was enhanced based on facts not found by a jury nor admit-
ted by Hadden, and because it was mandatorily entered pursuant to
the pre-Booker Sentencing Guidelines, respectively. In its supplemen-
tal brief, the Government argued that Hadden was not entitled to the
benefit of Booker because the Amended Judgment entering his 168
month sentence was part of his § 2255 proceeding — not part of his
UNITED STATES v. HADDEN 9
criminal case — and because Booker is not retroactive to § 2255 peti-
tions, see United States v. Morris, 429 F.3d 65 (4th Cir. 2005).3
II.
As a court of limited jurisdiction, we are obligated to first consider
sua sponte whether we have jurisdiction over Hadden’s appeal. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998)
("The requirement that jurisdiction be established as a threshold mat-
ter springs from the nature and limits of the judicial power of the
United States and is inflexible and without exception." (internal quo-
tation marks and alteration omitted)); Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986) ("[E]very federal appellate court
has a special obligation to satisfy itself . . . of its own jurisdiction . . .
even [if] the parties are prepared to concede it." (internal quotation
marks omitted)).
A prisoner who seeks to appeal "the final order in a proceeding
under section 2255," 28 U.S.C.A. § 2253(c)(1)(B), must obtain a
COA as a "jurisdictional prerequisite" to appeal, Miller-El v. Cock-
rell, 537 U.S. 322, 336 (2003) (explaining that state prisoner may not
appeal the district court’s denial of a petition under 28 U.S.C. § 2254
without first obtaining a COA). A COA will only issue if the prisoner
"has ma[de] a substantial showing of the denial of a constitutional
right." 28 U.S.C.A. § 2253(c)(2); see also Slack v. McDaniel, 529
U.S. 473, 484 (2000) (holding that when the district court denies a
§ 2254 petition on procedural grounds, a COA will issue only when
petitioner can demonstrate both (1) that the prisoner has "made a sub-
stantial showing of the denial of a constitutional right" and (2) "that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling" (internal quotation marks omitted)).4
3
Although the Supreme Court granted certiorari last year to decide
whether Blakely applies retroactively on collateral review, the Court ulti-
mately did not answer the question because it concluded that it lacked
jurisdiction over the petitioner’s claim. See Burton v. Stewart, 549 U.S.
___ (Jan. 9, 2007).
4
Although Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) and Slack
v. McDaniel, 529 U.S. 473, 484 (2000) addressed cases involving peti-
tions filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2006), accord-
ing to the plain language of 28 U.S.C.A. § 2253 (West 1994 & Supp.
2006), the COA requirement applies identically to appeals from § 2254
petitions and petitions filed under 28 U.S.C.A. § 2255. See 28 U.S.C.A.
§ 2253(c)(1-2).
10 UNITED STATES v. HADDEN
Hadden has not obtained a COA in this instance.5
If, therefore, the Amended Judgment was the final order in a "pro-
ceeding under section 2255," see 28 U.S.C.A. § 2253(c)(1)(B), we
lack subject-matter jurisdiction over this appeal. If, on the other hand,
the Amended Judgment was part of Hadden’s criminal case, we have
subject-matter jurisdiction over this appeal because a defendant seek-
ing to appeal his sentence in his criminal case need not obtain a COA
to do so under 18 U.S.C.A. § 3742(a) (West 2000) (providing for
appellate jurisdiction over a "final sentence" entered by the district
court without a COA requirement) and 28 U.S.C.A. § 1291 (West
2006) (providing for appellate jurisdiction over "final decisions" of
the district court). See United States v. Allen, 446 F.3d 522, 527 (4th
Cir. 2006) (holding that jurisdiction exists over defendant’s appeal of
his sentence under §§ 3742(a) and 1291). Our extensive research has
discovered no cases directly addressing this issue.6
In deciding whether we have jurisdiction over Hadden’s appeal of
the Amended Judgment, we first parse the language of § 2255. Next,
we examine the implications of the Supreme Court’s decision in
Andrews v. United States, 373 U.S. 334 (1963), on the meaning of
5
Two of Hadden’s three arguments on appeal —- that the district court
erred under § 2255 and the Federal Rules of Criminal Procedure by fail-
ing to give him a resentencing hearing and that the district court statu-
torily erred under Booker because his 168 month sentence was
mandatorily entered —- are not constitutional arguments, and therefore
cannot warrant a COA. With respect to Hadden’s third argument, his
constitutional Booker argument, such an argument is not available at this
time on collateral review. See United States v. Morris, 429 F.3d 65 (4th
Cir. 2005).
6
A somewhat analogous case to Hadden’s seems to be Frasch v.
Peguese, 414 F.3d 518 (4th Cir. 2005). In Frasch, we held that for pur-
poses of § 2254’s statute of limitations — which begins to run at the con-
clusion of the "direct review" of a criminal case, 28 U.S.C.A.
§ 2244(d)(1)(A) (West 1994 & Supp. 2006) — a Maryland state prison-
er’s belated appeal was part of the prisoner’s criminal case, not the col-
lateral attack on that case, despite the fact the belated appeal was granted
pursuant to a state post-conviction review motion. Id. at 522. Frasch is
of no help here, however, because it interpreted Maryland law, not
§ 2255.
UNITED STATES v. HADDEN 11
§ 2255. Then, interpreting § 2255 and Andrews, we conclude that a
district court order that enters either a "correct[ed]" sentence or the
result of a "resentenc[ing]" under § 2255 is a hybrid order that is both
part of the § 2255 proceeding and part of the petitioners’s underlying
criminal case. Finally, we conclude that because the Amended Judg-
ment here corrected Hadden’s sentence, and because he appeals only
the aspect of the Amended Judgment that is part of his criminal case,
we have jurisdiction over his appeal.
A.
Section 2255 provides federal prisoners a mechanism, beyond a
direct appeal, for challenging the legality of their sentence. That sec-
tion provides, in relevant part:
A prisoner in custody under sentence of a court established
by Act of Congress . . . may move the court which imposed
the sentence to vacate, set aside or correct the sentence.
. . . If the court finds that the judgment was [unlawful for
various specified reasons], the court shall vacate and set the
judgment aside and shall discharge the prisoner or resen-
tence him or grant a new trial or correct the sentence as may
appear appropriate.
[Paragraph omitted]
An appeal may be taken to the court of appeals from the
order entered on the motion as from a final judgment on
application for a writ of habeas corpus.
28 U.S.C.A. § 2255.
Under this section, a district court’s resolution of a prisoner’s
§ 2255 petition proceeds in two steps. First, the district court must
determine whether the prisoner’s sentence is unlawful on one of the
specified grounds. Id. at para. 2. If the district court determines that
the sentence is lawful, the court must deny the petition. If, by contrast,
the court determines that the sentence is unlawful, the court "shall
12 UNITED STATES v. HADDEN
vacate and set . . . aside" the sentence. Id. at para. 2. If the district
court determines that the prisoner’s sentence is unlawful because of
some legal defect in his conviction, the court may also vacate the pris-
oner’s conviction. See, e.g., In re Taylor, 171 F.3d 185, 186-87 (4th
Cir. 1999) (noting that district court vacated petitioner’s unlawful
§ 924(c) conviction).
Second, if the prisoner’s sentence (and, depending on the scope of
the prisoner’s challenge, perhaps one or more of his convictions as
well) is set aside, the district court "shall" grant the prisoner an "ap-
propriate" remedy. 28 U.S.C.A. § 2255. While "[t]he § 2255 remedy
is broad and flexible, and entrusts to the courts the power to fashion
an appropriate remedy," United States v. Garcia, 956 F.2d 41, 45 (4th
Cir. 1992), § 2255 lists the four remedies that are appropriate: (1)
"discharge the prisoner," (2) "grant [the prisoner] a new trial," (3) "re-
sentence [the prisoner]," or (4) "correct the [prisoner’s] sentence." 28
U.S.C.A. § 2255.7 Accordingly, the end result of a successful § 2255
proceeding must be the vacatur8 of the prisoner’s unlawful sentence
(and perhaps one or more of his convictions) and one of the follow-
ing: (1) the prisoner’s release, (2) the grant of a future new trial to the
prisoner, (3) or a new sentence, be it imposed by (a) a resentencing
or (b) a corrected sentence. Id.9
7
As common sense would dictate, a textual analysis of § 2255 reveals
that its references to "resentenc[ings]" and the "correct[ion]" of a prison-
er’s sentence must refer to "‘proceeding[s] designed to determine the
punishment imposed on a criminal wrongdoer’ and, by process of elimi-
nation, . . . its reference to a ‘new trial’ must refer to ‘a new proceeding
designed to determine whether a defendant should be convicted as guilty
of the charged crime.’" United States v. Stitt, 459 F.3d 483, 488 (4th Cir.
2006) (Williams, J., concurring) (quoting 28 U.S.C.A. § 2255 and
Black’s Law Dictionary 1393 (8th ed. 2004)).
8
Here, the district court did not technically vacate Hadden’s original
sentence. The Amended Judgment, however, entered a new 168-month
sentence in place of the original one. That judgment therefore had the
practical effect of vacating Hadden’s original sentence.
9
By stating that one of the possible outcomes of a successful § 2255
petition is a "new" sentence, we do not suggest that the "new" sentence
must be substantively different from the original one. In fact, when
defense counsel fails to notice a timely appeal from his client’s original
UNITED STATES v. HADDEN 13
B.
For purposes of determining when a § 2255 proceeding is complete
(and therefore appealable), it is important to note that § 2255 treats a
district court’s order granting the prisoner a future new trial differ-
ently from a district court’s order granting the prisoner a future dis-
charge, a future resentencing, or a future proceeding to correct the
prisoner’s sentence. This difference is brought into clear view by the
Supreme Court’s decision in Andrews v. United States, 373 U.S. 334
(1963), and the consequences that flow from the Court’s interpreta-
tion of § 2255.
In Andrews, the district court granted two prisoners’ § 2255 peti-
tions because they had not been afforded the opportunity to allocute
at their sentencings and directed that the prisoners be returned to the
court for resentencing at some time in the future. Id. The Government
appealed, and the court of appeals reversed on the merits of the allo-
cution issue. Id. The Supreme Court vacated the court of appeals’
decision, holding that the district court’s order, which contemplated
the petitioners’ future resentencings but did not actually sentence the
petitioners, was a non-appealable interlocutory order under § 2255.
Id. at 339-40. As the Supreme Court concluded, because a district
court’s order that contemplates a future sentencing is preliminary to
one of the remedies authorized under paragraph 2 of § 2255 — the
"resentenc[ing]" of the petitioner — it is therefore not "the order
entered on the [§ 2255] motion" under paragraph 4 of § 2255.
Andrews, 373 U.S. at 338. Because an appeal may be taken only from
sentence, a common remedy in a § 2255 proceeding alleging ineffective
assistance of counsel is vacatur and re-entry of the original sentence to
allow the defendant the opportunity timely to appeal his sentence. See,
e.g., In re Goddard, 170 F.3d 435, 436 (4th Cir. 1999) (defendant failed
to file appeal because of ineffective assistance of counsel); United States
v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) (same); United States v. Torres-
Otero, 232 F.3d 24, 30-31 (1st Cir. 2000)(defendant failed to file appeal
because district court failed to inform him of right to appeal); United
States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000) (same). Indeed, at
least one other court has recognized that such a course of action "correc-
t[s]" the defendant’s sentence under § 2255. See Torres-Otero, 232 F.3d
at 30.
14 UNITED STATES v. HADDEN
"the order entered on the motion," the Supreme Court held that until
the district court actually resentenced the petitioners, the § 2255 pro-
ceeding was not complete, and no appeal could be taken from the dis-
trict court’s order contemplating, but not accomplishing, the
prisoners’ resentencing. Id.; see also United States v. Stitt, 459 F.3d
483, 485 (4th Cir. 2006) (applying Andrews to hold that a district
court’s order that contemplates a future capital resentencing is not
immediately appealable).
Although Andrews held only that a district court’s order granting
a future resentencing is not immediately appealable because it does
not complete the § 2255 proceeding, Andrews’ logic has implications
far beyond its actual holding. Several of these implications are rele-
vant here.
First, because paragraph 2 of § 2255 authorizes the district court to
"correct" the prisoner’s unlawful sentence in the event it grants the
§ 2255 petition, a district court’s order that contemplates the court’s
correction of the prisoner’s sentence at some time in the future — like
an order that contemplates the district court’s conducting a future "re-
sentenc[ing]" — does not complete the § 2255 proceeding and is
therefore not immediately appealable. Cf. Andrews, 434 U.S. at 340.
Second, because paragraph 2 of § 2255 authorizes the district court
to "grant [the prisoner] a new trial" in the event § 2255 relief is appro-
priate, a district court’s order granting the prisoner a new trial com-
pletes the § 2255 proceeding and is therefore immediately appealable,
despite the fact that such an order contemplates further action by the
district court — i.e., conducting the new trial itself. See United States
v. Gordon, 156 F.3d 376, 378-79 (2d Cir. 1998) (holding that a dis-
trict court’s order granting a successful § 2255 petitioner a new trial
is immediately appealable); United States v. Allen, 613 F.2d 1248,
1250-52 (3d Cir. 1980) (same); United States v. Dunham Concrete
Prods., Inc., 501 F.2d 80, 81-82 (5th Cir. 1974) (same); cf. Andrews,
434 U.S. at 340.
Third, because paragraph 2 of § 2255 authorizes the district court
to "resentence" the prisoner or "correct" the prisoner’s unlawful sen-
tence in the event § 2255 relief is appropriate, a district court’s order
that either enters the result of a resentencing or corrects the prisoner’s
UNITED STATES v. HADDEN 15
sentence completes the § 2255 proceeding and is therefore immedi-
ately appealable. Cf. Andrews, 434 U.S. at 340.10
C.
Based on Andrews’ implications, it is clear that when the district
court remedies a successful § 2255 petitioner’s unlawful sentence by
vacating his conviction and sentence and granting him a new trial, the
new trial itself is not part of the § 2255 proceeding, but is instead part
of the prisoner’s underlying criminal case. If, as discussed, the order
granting a new trial completes the § 2255 proceeding, then the new
trial itself must, by process of elimination, occur in the petitioner’s
criminal case. Moreover, assuming the prisoner is again convicted,
the district court enters an entirely new conviction and sentence.
Accordingly, we would have jurisdiction under § 1291 to hear the
prisoner’s appeal of his new conviction, see United States v. Al-
Hamdi, 356 F.3d 564, 568 n.2 (4th Cir. 2004) (holding that jurisdic-
tion exists under § 1291 over defendant’s appeal of his conviction),
and we would have jurisdiction under §§ 3742(a) and 1291 to hear the
prisoner’s appeal of his new sentence, Allen, 446 F.3d at 527. Finally,
§ 2255 was designed to afford prisoners a mechanism of "collateral
review" of their conviction and sentence; that is, independent review
beyond the review authorized on a direct appeal. To hold that the new
trial itself was part of the § 2255 proceeding (and therefore subject to
§ 2253’s COA requirement) would prevent the defendant from ever
obtaining direct appellate review of his new conviction and sentence.
When, however, the district court remedies a § 2255 petitioner’s
10
Although not spelled out in the text of § 2255 — or in any of the
materials cited by the parties — we "surmise that one reason Congress
provided an order granting a future new trial on the issue of guilt is
appealable is that it would waste litigants’ and the district courts’
resources to conduct the new trial — with all of its attendant procedural
requirements (selecting the jury, making opening and closing arguments
to the jury, jury deliberations, etc.) — only for the appellate court to
determine, after the trial was completed, that it was not necessary in the
first place." Stitt, 459 F.3d at 487 (Williams, J., concurring). These effi-
ciency considerations are not present when the district court conducts a
run-of-the-mill resentencing or corrects the prisoner’s sentence.
16 UNITED STATES v. HADDEN
unlawful sentence by resentencing him or correcting his sentence, it
is less clear whether the resentencing or correction itself is part of the
prisoner’s § 2255 proceeding or part of his criminal case. On the one
hand, unlike the situation involving the grant of a new trial, the
§ 2255 petition is not complete until the district court actually resen-
tences the prisoner or corrects the prisoner’s sentence. See Andrews,
434 U.S. at 340. On the other hand, like the situation that exists after
the new trial is complete, the end result of the resentencing or correc-
tion of the prisoner’s sentence is an entirely new sentence that, argu-
ably, should be appealable under a plain application of §§ 3742(a) and
1291. To hold otherwise would prevent the defendant from ever
obtaining direct appellate review of his new sentence.
Because a § 2255 resentencing or correction of the prisoner’s sen-
tence thus bears traits of both a § 2255 proceeding and a criminal
action, we conclude that an order entering the result of such a resen-
tencing or an order correcting the prisoner’s sentence is a hybrid order
that is both part of the petitioner’s § 2255 proceeding and part of his
criminal case. To the extent the order formally completes the prison-
er’s § 2255 proceeding, it is part of that proceeding, and, accordingly,
a prisoner’s appeal of that aspect of the order is an appeal of a § 2255
proceeding. For example, if the petitioner seeks to appeal the order by
challenging the district court’s decision not to grant relief on some of
the claims in support of his § 2255 petition, he is appealing "the final
order in a proceeding under § 2255" and must obtain a COA under
§ 2253.11 To the extent the order vacates the original sentence and
enters a new criminal sentence, by contrast, the order is part of the
prisoner’s criminal case, and, accordingly, a prisoner’s appeal of that
aspect of the order is part of the petitioner’s criminal case. For exam-
ple, if the petitioner seeks to appeal the order by challenging the relief
11
It is clear that an order entering the result of such a resentencing or
an order correcting the prisoner’s sentence is a "final order" for purposes
of § 2253(a). Such an order finally resolves the § 2255 petition and
leaves the district court with no further action to take on the petition. See
Jones v. Braxton, 392 F.3d 683, 685-86 (4th Cir. 2004) (holding that dis-
trict court’s dismissal of § 2254 petition as second or successive was "the
final order" for purposes of § 2253 where the petition "terminated all
proceedings in the district court" (internal quotation marks and emphasis
omitted)).
UNITED STATES v. HADDEN 17
granted — i.e., whether the relief was "appropriate" under § 2255,
whether the new sentence was in conformity with the Constitution or
Sentencing Guidelines, etc. — he is appealing a new criminal sen-
tence and therefore need not obtain a COA under §§ 3742(a) and
1291.
This interpretation, while somewhat novel, is supported by the
uncontroverted understanding that habeas corpus can be "hybrid" in
nature. O’Brien v. Moore, 395 F.3d 499, 505 (4th Cir. 2005)
("Because habeas actions have both criminal and civil aspects, courts
have routinely regarded them as ‘hybrid’ actions."); United States v.
Jones, 215 F.3d 467, 469 (4th Cir. 2000) (noting that "habeas actions
are a unique hybrid of civil and criminal"); Smith v. Angelone, 111
F.3d 1126, 1130 (4th Cir. 1997) ("Habeas corpus cases are, in effect,
hybrid actions whose nature is not adequately captured by the phrase
‘civil action;’ they are independent civil dispositions of completed
criminal proceedings[,] . . . which are intended to punish and require
various constitutional guarantees." (internal quotation marks omit-
ted)); Sloan v. Pugh, 351 F.3d 1319, 1323 (10th Cir. 2003) (conclud-
ing that "habeas proceedings are unique or hybrid types of cases
(internal quotation marks omitted)); United States v. Johnston, 258
F.3d 361, 365 (5th Cir. 2001) (noting that courts had concluded that
"a § 2255 motion is a hybrid, with characteristics indicative of both
civil and criminal proceedings").12 Thus, although the proceeding is
technically civil in nature, see Woodford v. Ngo, 126 S. Ct. 2378,
2386 n.2 (2006) ("Habeas corpus is an original . . . civil remedy for
the enforcement of the right to personal liberty, rather than a stage of
the . . . criminal proceedings." (internal quotation marks omitted)), the
remedy entered pursuant to the proceeding is often technically crimi-
nal in nature, as it relates directly to the prisoner’s criminal punish-
12
We recognize that the Supreme Court has recently reaffirmed that
"[h]abeas corpus is an original . . . civil remedy for the enforcement of
the right to personal liberty, rather than a stage of the . . . criminal pro-
ceedings." Woodford v. Ngo, 126 S. Ct. 2378, 2386 n.2 (2006) (quoting
Fay v. Noia, 372 U.S. 391, 423-24 (1963) (alteration omitted)). This
statement, however, does not demand a conclusion that every remedy
entered pursuant to § 2255 is civil in nature, because the statement
relates only to the prisoner’s challenge to his confinement, not the district
court’s decision to impose new criminal punishment.
18 UNITED STATES v. HADDEN
ment, see Ex parte Tom Tong, 108 U.S. 556, 559 (1883)
("Proceedings to enforce civil rights are civil proceedings, and pro-
ceedings for the punishment of crimes are criminal proceedings.").
In addition, our interpretation of § 2255 serves the policies behind
§§ 2253 and 2255. We have stated that the goal of § 2255 review is
to place the defendant "in exactly the same position he would have
been" had there been no error in the first instance. United States v. Sil-
vers, 90 F.3d 95, 99 (4th Cir. 1996) (emphasis added); see also United
States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) (noting that
"the most ‘appropriate’ remedy is to put § 2255 [petitioners] in the
same boat as direct appellants"). Were we to hold that a successful
§ 2255 petitioner who received a corrected sentence or a resentencing
had to obtain a COA to appeal matters relating to the propriety of his
new sentence, he would be placed in a worse situation than he would
have been had there been no error in the first instance. Most obvi-
ously, because a COA will not issue for allegations of non-
constitutional error, he would not be able to obtain appellate review
of any purely statutory errors at his sentencing, such as an error in
construing the Sentencing Guidelines.
Moreover, one of the central purposes of § 2253’s COA require-
ment is to prevent the Government from having to respond to merit-
less appeals from the denial of habeas relief. See Miller-El v.
Cockrell, 537 U.S. at 350; Davis v. Jacobs, 454 U.S. 911, 917 (1981)
(Rehnquist, J., dissenting from the denial of petitions for certiorari).
One reason Congress may have sought to discourage meritless
appeals in the habeas context — but not the context of direct criminal
appeals — is that habeas review occurs after the prisoner has already
had an opportunity on direct appeal to challenge his conviction and
sentence. When a prisoner seeks to appeal the order entering the result
of a § 2255 resentencing or a corrected sentence, that order has never
been subjected to appellate review. Section 2253’s policy justification
would be over-served if we were to interpret the statute to discourage
appeals over sentences that had not yet been subject to appellate
review.13
13
Despite the fact that we twice requested supplemental briefing on the
difficult jurisdictional issue presented in this appeal, the Government
UNITED STATES v. HADDEN 19
We therefore hold that an order either correcting the prisoner’s sen-
tence or entering the result of a resentencing is a hybrid order that is
both part of the petitioner’s § 2255 proceeding and part of his crimi-
nal case. If the petitioner seeks to appeal the order by raising argu-
ments relating to the district court’s decision whether to grant relief
on his § 2255 petition, he is appealing "the final order in a proceeding
under § 2255" and therefore must obtain a COA under § 2253. If, on
the other hand, the petitioner seeks to appeal matters relating to the
propriety of the relief granted, he is appealing a new criminal sen-
tence and therefore need not comply with § 2253’s COA requirement.
D.
Applying this rule here, we conclude that Hadden’s appeal of the
Amended Judgment is part of his criminal case — not his § 2255 pro-
ceeding — and, accordingly, that he does not need a COA to pursue
this appeal. First, it is clear that the Amended Judgment neither "dis-
charg[ed]" Hadden nor "grant[ed him] a new trial" under § 2255.
Instead, because the Amended Judgment gave Hadden a new sen-
tence, it either "correct[ed]" Hadden’s original sentence or "resen-
tence[d]" him under § 2255. Under our analysis in Part II.C, supra,
the Amended Judgment is therefore a hybrid order that is part of both
Hadden’s criminal case and his § 2255 proceeding.
Second, in this appeal Hadden appeals only that aspect of the
Amended Judgment that is part of his criminal case. Hadden’s argu-
ments on appeal — that the district court was required to conduct a
resentencing hearing under Criminal Rule 43 and § 2255 — do not
challenge the district court’s conclusion that relief was not warranted
with respect to his drug convictions, but instead challenge whether the
relief that was ordered with respect to his § 924(c) conviction was an
barely challenges this interpretation of § 2255. In fact, its only argument
in support of its contention that Hadden’s appeal is part of his § 2255
proceeding is that because the district court granted Hadden relief pursu-
ant to § 2255, that relief must be part of his § 2255 proceeding. Such a
conclusion — which would also hold that new trials ordered pursuant to
§ 2255 and sentences that are re-entered when the prisoner is denied his
right to appeal are part of the § 2255 proceeding — is plainly incorrect.
20 UNITED STATES v. HADDEN
appropriate form of relief. Because the district court’s remedy techni-
cally vacated Hadden’s original sentence by entering a new corrected
sentence, the remedy was criminal in nature as it related directly to
Hadden’s criminal punishment. We therefore conclude that we have
jurisdiction over Hadden’s appeal of the Amended Judgment under
§§ 3742(a) and 1291, and turn to the merits of the appeal.14
III.
On the merits, Hadden argues that (1) the district court erred by
failing to conduct a resentencing hearing once it determined that relief
was warranted on his § 2255 petition and (2) the district court com-
mitted constitutional and statutory Booker error. We address these
arguments in turn.
14
We note that if Hadden had, in this appeal, challenged the district
court’s decision partially to deny him relief on his § 2255 claims, he
would have been challenging that part of the Amended Judgment that
was part of his § 2255 petition, not his criminal case. Accordingly, we
only would have had jurisdiction over such a challenge upon issuance of
a COA.
In this appeal, of course, Hadden did not challenge the district court’s
decision partially to deny him relief on his § 2255 claims. Instead, before
the district court entered the Amended Judgment, Hadden appealed the
Judgment in a Civil Case challenging the district court’s partial dismissal
of his § 2255 petition. We dismissed that appeal because Hadden’s argu-
ments on appeal failed to warrant the issuance of a COA.
We now recognize that we should not have dismissed the earlier
appeal because Hadden’s arguments failed to warrant a COA; instead,
we should have dismissed that appeal because the Judgment in a Civil
Case was not appealable under Andrews. Our technical error in resolving
Hadden’s earlier appeal plainly did not prejudice him; had we properly
applied Andrews to that appeal, we still would have dismissed the appeal,
just on different grounds. We therefore conclude that it would be a use-
less act to recall the mandate in our earlier unpublished opinion to correct
what is, in effect, an error only in the grounds given for an otherwise
proper dismissal.
UNITED STATES v. HADDEN 21
A.
First, Hadden argues that the district court erred under § 2255 and
Rules 32 and 43 of the Federal Rules of Criminal Procedure by failing
to conduct a formal resentencing before entering the Amended Judg-
ment. We review the form of relief the district court awards to a suc-
cessful § 2255 petitioner for abuse of discretion. See United States v.
Torres-Otero, 232 F.3d 24, 29-30 (1st Cir. 2000); United States v.
Gordon, 156 F.3d 376, 381 (2d Cir. 1998). For the reasons that fol-
low, we conclude that the district court did not abuse its discretion in
failing to conduct a resentencing hearing.
1.
We turn first to Hadden’s argument that the district court erred
under § 2255 by failing to conduct a formal resentencing hearing.
As previously noted, § 2255 authorizes the district court to take one
of four distinct courses in remedying a successful § 2255 petitioner’s
unlawful sentence: (1) "discharge the prisoner," (2) "grant [the pris-
oner] a new trial," (3) "resentence [the prisoner]," or (4) "correct the
[prisoner’s] sentence." As also noted, it is clear that the Amended
Judgment, which gave Hadden a new sentence, must have either "cor-
rect[ed]" Hadden’s original sentence or entered the result of a "resen-
tenc[ing]." It is equally clear that by using the different terms —
"correct" and "resentence" — § 2255 refers to different concepts. See
Cunningham v. Scibana, 259 F.3d 303, 308 (4th Cir. 2001) ("The use
of different terms within related statutes generally implies that differ-
ent meanings were intended." (quoting 2A Norman J. Singer, Statutes
and Statutory Construction § 46.06, at 194 (6th ed. 2000))).
As a descriptive matter, we think it is more accurate to say that the
Amended Judgment "correct[ed]" Hadden’s original sentence rather
than that the Amended Judgment entered the result of a "resentenc-
[ing]." To "correct" means to "make or set right." Merriam Webster’s
Collegiate Dictionary 280 (11th ed. 2004). This is precisely what the
district court did here; it removed the error from Hadden’s original
sentence — and thereby made it "right" — by excising the unlawful
60 month term on the § 924(c) count and re-entering Hadden’s origi-
nal 168 month term on the drug counts. Moreover, the district court
22 UNITED STATES v. HADDEN
did not conduct any of the procedures that would have been required
at a full-blown sentencing. The probation office did not prepare a new
PSR, the district court did not accept any new evidence or any legal
argument, and Hadden was not given the opportunity to allocute, all
of which would have been required if the entry of the Amended Judg-
ment were considered a resentencing. See Fed R. Crim. P. 32; Fed.
R. Crim. P. 43. If the phrase "correct[ing the prisoner’s unlawful] sen-
tence" means anything in this context, it must describe what the dis-
trict court did here. See also, United States v. Erwin, 277 F.3d 727,
731 (5th Cir. 2001) (concluding that the district court’s entry of an
amended judgment, which re-entered a portion of the prisoner’s sen-
tence, was a "correction" of the sentence, not a resentencing); Rust v.
United States, 725 F.2d 1153, 1154 (8th Cir. 1984) (noting, where
district court had vacated one of petitioner’s convictions and modified
multi-count sentence by striking the term of imprisonment on the
vacated count, that "the trial court was not required to resentence [the
petitioner]").
The fact that it is proper, as a descriptive matter, to call the
Amended Judgment the "correct[ion]" of Hadden’s original sentence
does not, of course, compel the conclusion that it was proper, as a
normative matter, for the district court to "correct" Hadden’s sentence
in lieu of conducting a formal "resentenc[ing]". Indeed, Hadden
argues that our decision in Hillary compels us to conclude that the
district court erred in failing to conduct such a resentencing. In Hil-
lary, the petitioner had been convicted of violating §§ 841(a)(1) and
924(c). 106 F.3d at 1170. He filed a petition under § 2255 alleging
that his § 924(c) conviction violated Bailey. Id. at 1171. The district
court agreed and vacated the § 924(c) conviction and its accompany-
ing term of imprisonment, leaving the sentence on the § 841 count
intact. Id. The Government argued to the district court that it should
conduct a resentencing to enhance Hillary’s sentence under
§ 2D1.1(b)(1), but the district court held that it lacked jurisdiction
under § 2255 to conduct a resentencing. Id. at 1171. On the Govern-
ment’s appeal, we vacated and remanded for resentencing, noting that
§ 2255 gives the district courts "broad and flexible power . . . to fash-
ion an appropriate remedy," id. at 1171 (internal quotation marks
omitted), and holding that this power included the authority to con-
duct a resentencing, id. at 1172-73.
UNITED STATES v. HADDEN 23
Hillary does not help Hadden. Hillary held only that the district
court is authorized to conduct a resentencing in awarding relief pursu-
ant to § 2255, not that the district court is required, in resolving every
§ 2255 petition, to conduct a resentencing. See id. at 1172 (concluding
that resentencing is "permit[ted]" when a § 924(c) conviction is
vacated on collateral review); United States v. Smith, 115 F.3d 241
(4th Cir. 1997) (determining that the district court "had jurisdiction"
to resentence the defendant after a successful collateral attack of his
§ 924(c) conviction); United States v. Hawthorne, 94 F.3d 118, 122
(4th Cir. 1996) (noting that the Government "may" pursue resentenc-
ing if it elects to forgo a second trial on the § 924(c) charge). Hadden
argues, however, that the district court erred in failing to conduct a
resentencing here because he, like the Government in Hillary,
requested a resentencing. This argument is based on a misreading of
Hillary. We did not direct that resentencing take place in Hillary
because the Government requested it. Instead, we remanded the case
with instructions to conduct a resentencing because the district court’s
refusal to do so in the first instance was based on the erroneous legal
conclusion that it lacked the authority to resentence Hillary and
because the district court generally may not make a prisoner’s sen-
tence more onerous without conducting a resentencing. See, e.g.,
Erwin, 277 F.3d at 731 (affirming district court’s decision to modify
prisoner’s sentence to account for vacated conviction without con-
ducting a resentencing because the modification was "a downward
correction of [the prisoner’s] illegal sentence"); United States v.
Moree, 928 F.2d 654, 655-56 (5th Cir. 1991) ("We have long recog-
nized the distinction between proceedings in the district court that
modify an existing sentence and those that impose a new sentence
after the original sentence has been set aside. In the former instance,
[a resentencing with the defendant present] usually is not required,[ ]
unless the modification makes the sentence more onerous."); Rust,
725 F.2d at 1154 (noting, where district court had vacated one of the
petitioner’s convictions and modified the multi-count sentence by
striking the term of imprisonment on the vacated count, that "the trial
court was not required to resentence [the petitioner]").15
15
We need not address whether this rule has any exceptions, such as
when the district court corrects a sentence under Rule 35(a) of the Fed-
eral Rules of Criminal Procedure by increasing the sentence.
24 UNITED STATES v. HADDEN
Here, by contrast, the Government did not seek to enhance Had-
den’s 168 month sentence on his remaining drug counts, and the dis-
trict court did not, in fact, increase that portion of his earlier sentence,
much less his original 228 month sentence. Therefore, just as it is
clear, as a descriptive matter, that the district court actually "correc-
t[ed]" Hadden’s sentence under § 2255, it is also clear, as a normative
matter, that the district court properly "correct[ed]" Hadden’s sen-
tence under § 2255. The text of § 2255 clearly affords the district
courts the authority to "correct" a prisoner’s unlawful sentence with-
out conducting a formal "resentenc[ing]" hearing, and nothing in Hil-
lary suggests otherwise.
Hadden further contends that the district court erred by failing to
conduct a formal resentencing because we have adopted a sentence-
package theory of sentencing. Under this theory, a sentence is not
merely the sum of its parts; instead, because the district court crafts
a sentence by considering all of the relevant factors as a whole, an
appellate court that rejects one of the grounds on which the sentence
is based unbundles the entire sentence package. If, then, the appellate
court vacates and remands a prisoner’s sentence because of a sentenc-
ing error, the district court may not simply re-enter the non-offending
portions of the original sentence, but must conduct a new resentenc-
ing hearing to reformulate the entire sentence package.
We do not deny that the sentence-package theory has support in
our case law. The sentence-package theory, however, does not help
Hadden. Here, we — the appellate court — did not conclude that
Hadden’s original sentence was unlawful, vacate that sentence, and
remand to the district court; instead, the district court itself — by
striking the § 924(c) sentence and reentering the remaining sentence
— indicated that it was satisfied with the resulting sentence. The dis-
trict court has "broad and flexible power" under § 2255 to determine
the nature and scope of the remedial proceedings in the first instance,
Hillary, 106 F.3d at 1171 (internal quotation marks omitted), and
nothing in the sentence-package theory forbids the district courts from
doing what the text of § 2255 clearly permits: "correct[ing]" a prison-
er’s unlawful sentence without conducting a formal "resentenc[ing]."
UNITED STATES v. HADDEN 25
2.
Hadden also argues that Criminal Rules 32 and 43 required the dis-
trict court to conduct a resentencing hearing before imposing his 168
month sentence. This argument is without merit. In relevant part,
Criminal Rule 32 sets forth procedures that must occur at
"[s]entencing." For its part, Criminal Rule 43 provides that a defen-
dant must be present at "sentencing." Fed R. Crim. P. 43(a)(3).16 See
also United States v. Lawrence, 248 F.3d 300, 302 (4th Cir. 2001)
("[T]he plain text of Rule 43 mandates that a defendant be physically
present at sentencing . . . ."). For reasons already explained, however,
we do not believe that the district court conducted a "sentencing," but
instead "correct[ed]" Hadden’s sentence. Criminal Rules 32 and 43
are therefore inapplicable.
B.
Second, Hadden argues that his corrected sentence was statutorily
erroneous under Booker because the district court mandatorily applied
the Sentencing Guidelines. Hadden did not raise his statutory Booker
argument below, so we review it for plain error. See United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
Under plain error review, the defendant must show that (1) the dis-
trict court committed error, (2) the error was plain, and (3) the error
affected his substantial rights. Id. at 547-55. If the defendant com-
plains of statutory Booker error, he can show that the error affected
his substantial rights only if the district court’s "treatment of the
guidelines as mandatory affected the district court’s selection of the
sentence imposed." United States v. White, 405 F.3d 208, 223 (4th
Cir. 2005) (internal quotation marks and alteration omitted). If the
defendant makes this three-part showing, correction of the error nev-
ertheless remains within our discretion, which we should not exercise
unless "the error seriously affects the fairness, integrity or public rep-
16
We cite to the current version of the Federal Rules of Criminal Pro-
cedure. The differences in the current version and the version in effect
at the time that the district court entered the Amended Judgment are not
relevant for purposes of this opinion.
26 UNITED STATES v. HADDEN
utation of judicial proceedings." See United States v. Hughes, 401
F.3d 540, 555 (4th Cir. 2005).
We have reviewed the record in this case and have discovered no
non-speculative grounds on which to conclude that the district court
would have given Hadden a lower sentence had it been applying a
discretionary Guidelines regime. The district court made no state-
ments at Hadden’s original sentencing hearing suggesting that it was
dissatisfied either with Hadden’s 168 month concurrent terms on his
drug counts or his overall 228 month sentence. Moreover, neither the
Amended Judgment nor the district court’s written order denying
Hadden’s Objection to Amended Judgment contains any indication
that the district court would have given Hadden less than a 168 month
sentence on the drug counts were it to apply the Guidelines in a dis-
cretionary fashion. We therefore conclude that Hadden has not satis-
fied his burden of showing that any statutory Booker error the district
court committed affected his substantial rights.
C.
Finally, Hadden argues that the district court violated his Sixth
Amendment rights at sentencing by attributing drug weights to him
that were neither admitted by Hadden nor found by a jury. Although
Hadden’s argument has merit, we decline to recognize the Sixth
Amendment error because of the circumstances of this case.
Because Hadden did not make his constitutional Booker argument
below, we review it for plain error. See United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). "[A] district court commits plain error
that affects a defendant’s substantial rights when, operating under a
pre-Booker mandatory Guidelines regime, it imposes a sentence that
exceeds the maximum Guideline sentence authorized by the jury ver-
dict [or the facts admitted by the defendant]." United States v. Smith,
441 F.3d 254, 271 (4th Cir. 2006); see Booker, 543 U.S. at 244 ("Any
fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.").
UNITED STATES v. HADDEN 27
We have little trouble concluding that there was Sixth Amendment
error here, the error was plain, and it affected Hadden’s substantial
rights. See, e.g., United States v. Olano, 507 U.S. 725, 734-35 (1993).
The jury did not attribute a specific weight to Hadden and he did not
admit to any specific weight. Instead, the district court made the drug
quantity findings. In using those judicial findings of fact to increase
Hadden’s sentence beyond the maximum authorized by the jury ver-
dict, the district court violated Hadden’s Sixth Amendment rights.17
Nevertheless, we decline to recognize the plain error. See, e.g., id.
("If the forfeited error is ‘plain’ and ‘affects substantial rights,’ the
court of appeals has authority to order correction, but is not required
to do so." (internal alteration omitted)). The Supreme Court has
explained that we should only "correct a plain forfeited error affecting
substantial rights if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings." Id. (internal quotation
marks and alteration omitted). In the constitutional Booker context,
this Court refused to recognize a Sixth Amendment error in Smith.
In Smith, the defendant’s sentence — because of judicial factfind-
ing — exceeded the maximum Guideline sentence allowed based on
the jury verdict alone. We held that "[e]ven though the Sixth Amend-
ment required that the jury, rather than the trial judge, make the drug
quantity findings that increased [the defendant’s] sentence, the evi-
dence concerning drug quantity was overwhelming and [essentially]
uncontroverted." Id. at 272; see also United States v. Cotton, 535 U.S.
625, 633 (2002) (declining to recognize Fifth Amendment error
because drug quantity evidence was "overwhelming and essentially
uncontroverted" (internal quotation marks omitted)); Johnson v.
United States, 520 U.S. 461, 470 (1997) (declining to recognize Sixth
Amendment error where the element of materiality in a perjury con-
viction was found by a judge rather than a jury because the evidence
concerning materiality was "overwhelming" and "essentially uncon-
troverted"); United States v. Promise, 255 F.3d 150, 164 (4th Cir.
2001) (en banc) (declining to recognize plain error in a situation simi-
17
We note that we of course offer no criticism of the district court for
its Sixth Amendment error because the court "followed the law and pro-
cedure in effect at the time of [Hadden’s] sentencing." United States v.
Hughes, 401 F.3d 540, 545 n.4 (4th Cir. 2005).
28 UNITED STATES v. HADDEN
lar to Hadden’s when the judge violated the Sixth Amendment by
making drug weight findings because the evidence was overwhelming
and "had the indictment included the [drug quantity], the jury would
have found [the defendant] guilty beyond a reasonable doubt").
Here, we recognize that the drug quantities attributable to Hadden
were not uncontroverted at his original sentencing,18 as Hadden in fact
objected to the findings made in his PSR. But Hadden’s objection was
specific; he argued that the district court should have concluded that
the quantities attributable to him should have amounted in an offense
level of 32, as opposed to 34. Accordingly, that there was at least
enough methamphetamine attributable to him to constitute an offense
level of 32 was uncontroverted. See U.S. Sentencing Guidelines Man-
ual § 2D1.1(c)(4) (1998) (defining level 32 in part as "[a]t least 500
G but less than 1.5 KG of Methamphetamine, or at least 100 G but
less than 300 G of Methamphetamine (actual)"). Even if the district
court had agreed with Hadden and given him a total offense level of
32, his sentencing range would have been 135-168 months’ imprison-
ment, and the district court’s ultimate sentence of 168 months on the
drug counts therefore did not exceed the maximum sentence that
could have been imposed under the offense level that Hadden
requested. Moreover, when Hadden’s corrected sentence was entered
— the sentence he now appeals — he did not make any objection to
his offense level.19
Aside from being "essentially uncontroverted," the evidence that
18
Hadden, of course, is appealing his new sentence, not his original
sentence. Nonetheless, his constitutional Booker claim is centered on his
argument that the district court violated his Sixth Amendment rights dur-
ing his original sentencing. Implicitly, then, he is arguing that the district
court likewise erred in relying on the same judicially found facts when
correcting his sentence.
19
To be sure, we are not suggesting that Hadden’s silence or his argu-
ing for an offense level of 32 was sufficient to be considered an "admis-
sion" of the requisite drug quantities. See United States v. Milam, 443
F.3d 382, 387 (4th Cir. 2006) ("Any admission of fact must, of course,
be of sufficient clarity and kind to justify taking the fact from the jury.").
These factors do, however, go far to show that the relevant drug quanti-
ties were uncontroverted.
UNITED STATES v. HADDEN 29
Hadden had at least enough methamphetamine to qualify for an
offense level of 32 was also "overwhelming." See, e.g., Johnson, 520
U.S. at 470. During Hadden’s original sentencing hearing, the district
court went to great lengths to insure that Hadden was held account-
able only for methamphetamine quantities that were overwhelmingly
supported by the record.20 Thus, we have no doubts, just as we had
none in Promise and Smith, that had the indictment included the spe-
cific drug quantities necessary to support Hadden’s sentencing range,
the jury would have found those weights attributable to Hadden
beyond a reasonable doubt. See Promise, 255 F.3d at 164. We there-
fore decline to recognize the clear Sixth Amendment error.21
IV.
For the foregoing reasons, we conclude that we have jurisdiction
over this appeal and affirm.
AFFIRMED
20
For a brief summary of this evidence, see Part I of this opinion.
21
We note that if we had recognized the error, Hadden might have
faced an even higher offense level (36) on remand because the Govern-
ment would have been free to seek a two-level enhancement of his sen-
tence under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998)
(setting forth an enhancement for possession of a gun during the com-
mission of a drug crime), an enhancement that was unavailable during
Hadden’s original sentencing because of his (now vacated) § 924(c) con-
viction.