In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1680
STACY M. HAYNES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 16-4106 — Joe Billy McDade, Judge.
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ARGUED OCTOBER 4, 2017 — DECIDED OCTOBER 17, 2017
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Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. In 1998 Stacy Haynes was
convicted of 12 federal crimes and sentenced to life plus 105
years in prison. His direct appeal was unsuccessful. United
States v. Haynes, No. 98-1460 (7th Cir. Jan. 13, 1999) (un-
published order). A collateral attack under 28 U.S.C. §2255
also failed. But after the Supreme Court decided Johnson v.
United States, 135 S. Ct. 2551 (2015), and in Welch v. United
States, 136 S. Ct. 1257 (2016), made Johnson retroactive on col-
2 No. 17-1680
lateral review, we authorized Haynes to pursue another col-
lateral attack. See 28 U.S.C. §§ 2244(b)(2)(A), 2255(h)(2).
Johnson holds that the residual clause in 18 U.S.C.
§924(e)(2)(B)(ii) is unconstitutionally vague. That clause la-
bels as a violent felony a crime that “involves conduct that
presents a serious potential risk of physical injury to anoth-
er”. Our court has held that other similarly worded clauses
elsewhere in the Criminal Code also are unconstitutional.
See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir.
2015) (18 U.S.C. §16(b)); United States v. Cardena, 842 F.3d
959, 996 (7th Cir. 2016) (18 U.S.C. §924(c)(3)(B)). The district
court concluded that Johnson, as understood in Vivas-Ceja
and Cardena, implies the invalidity of yet another residual
clause, the one in 18 U.S.C. §3559(c)(2)(F)(ii). Haynes v. Unit-
ed States, 237 F. Supp. 3d 816, 823 (C.D. Ill. 2017). Haynes’s
life sentences depend on that residual clause, the judge de-
termined, and he held that Haynes must be resentenced. The
Supreme Court has under advisement a case, Sessions v. Di-
maya, No. 15–1498 (argued Oct. 2, 2017), that may reveal
whether Vivas-Ceja and Cardena correctly applied Johnson,
but the district judge properly treated those decisions as con-
trolling unless the Justices say otherwise.
Although he concluded that Haynes must be resen-
tenced, the judge did not set aside any of Haynes’s convic-
tions. Haynes argued that three of his §924(c) convictions
depend on a conclusion that interstate travel in aid of racket-
eering, 18 U.S.C. §1952(a)(2), is a crime of violence. Section
924(c) makes it a crime to use a firearm when committing a
crime of violence. Knock out the classification of a predicate
offense as a crime of violence and you knock out the §924(c)
conviction.
No. 17-1680 3
The district court recognized that Hobbs Act robbery, 18
U.S.C. §1951, is a crime of violence under the elements
clause of §924(c)(3)(A) rather than the residual clause of
§924(c)(3)(B). See United States v. Anglin, 846 F.3d 954, 964–65
(7th Cir. 2017), remanded on other grounds, No. 16–9411
(U.S. Oct. 2, 2017). The elements clause designates as a crime
of violence a felony that “has as an element the use, attempt-
ed use, or threatened use of physical force against the person
or property of another”. Johnson does not affect the elements
clauses of §924(c)(3)(A) and comparable statutes. See Stanley
v. United States, 827 F.3d 562 (7th Cir. 2016); Yates v. United
States, 842 F.3d 1051 (7th Cir. 2016). The district court con-
cluded that Haynes’s §1952(a)(2) convictions should be clas-
sified the same way as the §1951 offense, because his inter-
state travel set the stage for robberies. Haynes immediately
appealed, and his brief in this court contends that, whatever
may hold for Hobbs Act robbery, the crime of interstate
travel for the purpose of committing racketeering does not
satisfy the elements clause of §924(c)(3)(A).
When this collateral attack began, Haynes contested the
six life sentences he had received under §3559(c)—one for
each conviction under §1951 or §1952—plus his six convic-
tions under §924(c). He won in part and lost in part. The re-
sentencing that has been ordered on the §1951 and §1952
convictions may well affect the sentences on the §924(c) con-
victions, if only because the norm is to resentence on all
counts when any conviction is vacated or needs a new sen-
tence. See United States v. Pennington, 667 F.3d 953, 958 n.3
(7th Cir. 2012); United States v. Shue, 825 F.2d 1111, 1113–14
(7th Cir. 1987). Sentencing under 18 U.S.C. §3553(a) and the
Sentencing Guidelines requires the court to craft a penalty
appropriate to the offender and all related convictions and
4 No. 17-1680
relevant conduct. After removing the life sentences that had
been mandated by §3559(c), the district judge must select
new sentences for the §1951 and §1952 convictions. The
length of those sentences may affect the appropriate length
of the §924(c) sentences as well.
So this proceeding is not over. Until the judge has resen-
tenced Haynes, a step that lies in the future, it is not over on
any of the 12 counts of conviction, because the new sentences
will affect all 12. See Garner v. United States, 808 F.3d 716 (7th
Cir. 2015). But even if the district judge were not planning to
resentence Haynes on the three §924(c) counts that he con-
tests in this court, the appeal would be premature. The unit
of finality in federal criminal law is the indictment, not a
single count of an indictment. Although the Criminal Ap-
peals Act, 18 U.S.C. §3731, permits the United States to ap-
peal from an order dismissing a single count, see United
States v. Davis, 793 F.3d 712 (7th Cir. 2015) (en banc) (discuss-
ing how §3731 departs from ordinary rules of finality), a de-
fendant normally must wait until the whole prosecution has
been completed, and every count has been finally resolved,
before taking an appeal. Holman v. Gilmore, 126 F.3d 876, 881
(7th Cir. 1997); United States v. Kaufmann, 951 F.2d 793, 795
(7th Cir. 1992). Otherwise cases would be fractured. Take
Haynes’s situation: an appeal concerning the validity of
three §924(c) counts may well be followed by another appeal
concerning the length of the sentences still to be imposed on
six or more counts, plus the relation between those sentences
and the sentences on the §924(c) convictions.
When this appeal was briefed, both Haynes and the
United States assumed that finality in proceedings under
§2255 is evaluated without regard to impending resentenc-
No. 17-1680 5
ing. They treated the request for collateral relief as a separate
suit, which ended when the district court announced that
some convictions required new sentences and that other
convictions would not be vacated. But that’s not how the
Supreme Court in Andrews v. United States, 373 U.S. 334
(1963), understood the effect of an order requiring a defend-
ant’s resentencing.
Andrews and a codefendant filed §2255 motions con-
tending that their sentences were invalid because they had
not been offered an opportunity for allocution. After the dis-
trict judge agreed, the United States appealed. The court of
appeals reversed, holding that the absence of an opportunity
to address the sentencing judge was not a ground of collat-
eral relief under §2255. The Supreme Court reversed in turn,
holding that the district court’s decisions were not final and
were not subject to interlocutory appeal under the Criminal
Appeals Act, which does not apply in §2255 proceedings.
The Court concluded that, when a judge in a §2255 proceed-
ing orders a resentencing, the §2255 proceeding is not over,
and the decision is not appealable, until that resentencing
has occurred.
Andrews did not entail multiple counts for each defend-
ant, nor did it present a situation in which a collateral attack
under §2255 leads to resentencing on some counts while the
validity of others is unaffected. But it strongly suggests that
the §2255 proceeding is not over until any required resen-
tencing has occurred, after which an appeal from the new
sentence presents all issues in the §2255 proceeding and the
criminal case alike. At least five circuits have so understood
it, holding that in multicount situations the final resolution
must be achieved on all counts before the decision may be
6 No. 17-1680
appealed with respect to any count. See United States v.
Hammer, 564 F.3d 628, 632–34 (3d Cir. 2009); United States v.
Hayes, 532 F.3d 349, 352 (5th Cir. 2008); United States v. Futch,
518 F.3d 887, 894 (11th Cir. 2008); United States v. Stitt, 459
F.3d 483, 485–86 (4th Cir. 2006); United States v. Martin, 226
F.3d 1042, 1048 (9th Cir. 2000). We recognize that Ackerland
v. United States, 633 F.3d 698 (8th Cir. 2011), permitted the
prosecutor to appeal in a §2255 proceeding in advance of re-
sentencing, but that decision contradicts Andrews, a case the
Eighth Circuit did not mention. Indeed, the Eighth Circuit
did not discuss finality at all. (It discussed whether the ap-
peal was timely but not whether the district court’s decision
was final.)
At oral argument we asked the parties to file memoranda
discussing Andrews and later decisions such as Hammer. To
their credit, they acknowledged the jurisdictional problem.
We understand why Haynes filed an immediate appeal; his
lawyer was concerned that, if he waited until the resentenc-
ing, the prosecutor might contend that the time to appeal
had expired. But with today’s opinion the law in the Seventh
Circuit is clear. We agree with Hammer, Hayes, Futch, Stitt,
and Martin, and we hold that, whether a §2255 proceeding
concerns one count or many counts, when a district court
orders resentencing on any count, the decision is not final
until the new sentence has been imposed.
The appeal is dismissed for want of jurisdiction.