United States v. Jazzman Rickeem Brown

Case: 16-14267 Date Filed: 01/18/2018 Page: 1 of 21

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

Nos. 16-14267 ; 16-14284
________________________

D.C. Docket No. 6:10-cr-00317-GKS-KRS-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus

JAZZMAN RICKEEM BROWN,

Defendant - Appellant.
________________________

Appeals from the United States District Court
for the Middle District of Florida
________________________

(January 18, 2018)

Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.

MARTIN, Circuit Judge:
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Jazzman Brown, who is a federal prisoner, brings this appeal of the sentence

imposed on him in District Court, after that court granted his motion to vacate or

correct his earlier sentence, filed pursuant to 28 U.S.C. § 2255.

In his § 2255 motion, Mr. Brown attacked his original sentence, saying that

in light of Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), he no

longer qualified for a 15-year sentence under the Armed Career Criminal Act, 18

U.S.C. § 924(e) (“ACCA”). The District Court agreed and vacated Mr. Brown’s

15-year sentence. However, the District Court went on to resentence Mr. Brown to

a 10-year term of imprisonment, which is the longest sentence allowed under Mr.

Brown’s statute of conviction. Mr. Brown’s new 10-year sentence is a significant

upward variance from his corrected guideline range. The District Court imposed

this statutory maximum sentence without conducting a resentencing hearing and

without giving any explanation for the sentence. Mr. Brown argues here on appeal

that the District Court erred by (1) correcting his sentence without conducting a

resentencing hearing with Mr. Brown in attendance, and (2) imposing a sentence

well above the guideline range without any explanation. After careful review, and

with the benefit of oral argument, we vacate Mr. Brown’s sentence and remand for

a sentencing hearing, in which he can be present and allocute.

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I.

In 2011, Mr. Brown pled guilty to one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). Mr. Brown was sentenced to

15-years imprisonment, which is the mandatory minimum sentence required for

ACCA defendants who have three earlier felony convictions that meet the

definition given in the statute. Notably, for defendants who have not three, but

instead one or two earlier convictions, the statute allows a sentence of no more

than ten years. Mr. Brown’s 15-year ACCA sentence was based on three predicate

crimes: (1) a 2004 Florida conviction for sale of cocaine; (2) a 2005 Florida

conviction for sale of cocaine; and (3) a 2009 Florida conviction for fleeing or

eluding.

In 2015, Mr. Brown filed a 28 U.S.C. § 2255 motion in light of the Supreme

Court’s decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551

(2015). A motion filed pursuant to 28 U.S.C. § 2255 is a civil proceeding, separate

from the criminal sentence it attacks. In his § 2255 motion, Mr. Brown argued that

one of his predicate convictions, fleeing and eluding, no longer qualified as a

“violent felony” so as to make him eligible for the 15-year ACCA sentence. The

government agreed that Mr. Brown’s 15-year sentence should be vacated.

However, it asked the District Court to simply impose a new sentence of 10-years

imprisonment and advised the court no sentencing hearing was necessary. Again,

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ten years is the highest sentence allowed under Mr. Brown’s new statute of

conviction. Mr. Brown filed a written objection, asserting that he was entitled to a

resentencing hearing.

The District Court held no hearing, but granted Mr. Brown’s § 2255 motion.

The Order granting the motion said it “corrected” Mr. Brown’s sentence “to reflect

a revised term of 120 months’ incarceration followed by three years’ supervised

release.” In addition to holding no resentencing hearing in connection with Mr.

Brown’s resentencing, the court gave no explanation for the sentence it imposed.

Mr. Brown filed a motion for reconsideration, again asking the District Court to

hold a resentencing hearing. And again, Mr. Brown’s motion was denied without

any hearing or explanation. Mr. Brown then filed a timely notice of appeal in his

§ 2255 proceeding, and requested a motion for a Certificate of Appealability

(“COA”) on the issue of whether he was entitled to a resentencing hearing. The

District Court denied Mr. Brown’s motion, but this Court granted him a COA on

the issue now before us.

Consistent with its judgment in Mr. Brown’s § 2255 case (the civil

proceeding), the District Court entered an amended judgment in Mr. Brown’s

criminal case. The “Statement of Reasons” entered by the District Court in

connection with the new 10-year sentence showed that Mr. Brown’s new

sentencing guideline range was 77 to 96 months, and noted that his old sentence

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was “vacated.” It also noted the District Court was imposing an upward variance

and sentencing Mr. Brown to a 120-month term of imprisonment. Mr. Brown filed

a timely notice of appeal in his criminal case, in addition to the one already filed in

the § 2255 proceeding. Mr. Brown argued that because the District Court failed to

give him a resentencing hearing, it (1) didn’t properly consider the factors it is

required to consider under 18 U.S.C. § 3553(a)1; and (2) didn’t consider his post-

sentencing conduct. This Court consolidated Mr. Brown’s civil and criminal

appeals.

II.

In any appeal from a proceeding on a motion to vacate, set aside, or correct a

sentence, we review legal issues de novo. Osborne v. Terry, 466 F.3d 1298, 1304–

05 (11th Cir. 2006). We also review de novo “questions involving the legality of a

criminal sentence,” United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (per

curiam), which includes the District Court’s failure to give a specific reason for a

non-guideline sentence as required by 18 U.S.C. § 3553(c)(2). United States v.

Parks, 823 F.3d 990, 996 (11th Cir. 2016).

1
A sentencing judge must consider the factors laid out in 18 U.S.C. § 3553(a). These
factors include: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense; (3)
the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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Mr. Brown argues here, as he did in the District Court, that the court erred

when it resentenced him without giving him a hearing. This Court has not directly

spoken to the standard of review we should use in reviewing a District Court’s

choice of remedy under 28 U.S.C. § 2255. However, “[f]ederal habeas corpus

practice . . . indicates that a court has broad discretion in conditioning a judgment

granting habeas relief.” Hilton v. Braunskill, 481 U.S. 770, 775, 107 S. Ct. 2113,

2118 (1987). And indeed this Court has recognized “the broad, flexible power

conferred by section 2255.” United States v. Mixon, 115 F.3d 900, 903 (11th Cir.

1997). Other circuits have held that a District Court’s choice among the remedies

provided in § 2255 is reviewed for abuse of discretion. See Loher v. Thomas, 825

F.3d 1103, 1111 (9th Cir. 2016); Woodfox v. Cain, 805 F.3d 639, 644 (5th Cir.

2015); Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012); United States v.

Hadden, 475 F.3d 652, 667 (4th Cir. 2007); 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).

We like the approach of our sister circuits and will also review the District

Court’s choice of § 2255 remedy for an abuse of discretion. In doing so, we

recognize there may be more than one choice of remedy available to a District

Court in any given case. See United States v. Frazier, 387 F.3d 1244, 1259 (11th

Cir. 2004) (en banc). As always, however, a court abuses its discretion if it makes

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a choice that is contrary to law. See Amlong & Amlong, P.A. v. Denny’s, Inc.,

500 F.3d 1230, 1238 (11th Cir. 2007). And, as discussed below, the Constitution’s

requirement that a defendant be present at critical stages of proceedings restricts a

District Court’s choice of remedy.

III.

When a court grants a motion to vacate, set aside, or correct a sentence

under 28 U.S.C. § 2255, the statute provides that the court “shall vacate and set the

judgment aside and shall discharge the prisoner or resentence him or grant a new

trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). The

statute thus establishes a two-step process. First, the court must “vacate and set the

judgment aside.” Id. Second, the court must choose from among four distinct

remedies: (1) discharge the prisoner; (2) resentence the prisoner; (3) grant the

prisoner a new trial; or (4) correct the prisoner’s sentence. Id. This case requires

us to address when a court may summarily correct a sentence and when it is

required to conduct a resentencing hearing.

We begin with the recognition that this Court’s precedent has not been

entirely consistent in its use of the terms “resentence” and “correct.” In reviewing

how other circuit courts address this question, we see that the First Circuit has

observed “[a]ny alteration of the original judgment imposing the sentence could be

called a ‘resentencing’—the word has no definitive meaning.” United States v.

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Bryant, 643 F.3d 28, 32 (1st Cir. 2011). And our own cases have used the term

“resentencing” to refer to a range of sentence modification procedures. In one

case, our predecessor court appears to define a “resentencing” as necessarily

requiring a resentencing hearing. See Johnson v. United States, 619 F.2d 366,

368–69 (5th Cir. 1980). 2 In another, we use a broader definition of “resentencing,”

suggesting that the right to be present does not extend to all resentencings, but only

“resentencing under certain circumstances.” See United States v. Jackson, 923

F.2d 1494, 1496 (11th Cir. 1991). Clarity in this context retreats further, because

the definition of a sentence “correction” under Federal Rule of Criminal Procedure

35 has shifted substantially since key cases on this issue were decided. Before

1987, Rule 35 could be used to “correct an illegal sentence at any time.” See

Jackson, 923 F.2d at 1496 n.1 (quotation omitted). Now, however, Rule 35 allows

a court to “correct” only a sentence “that resulted from arithmetical, technical, or

other clear error,” and then, only if a motion requesting the change is made within

fourteen days of sentencing. Fed. R. Crim. P. 35(a). As a result, cases addressing

changes made to sentences before 1987 talk about sentences being “corrected”

pursuant to Rule 35, when the same changes would not qualify as corrections

under the Federal Rules today.

2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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In the context of § 2255, we read “resentence” and “correct” to define

distinct remedies. See United States v. Williams, 340 F.3d 1231, 1236 (11th Cir.

2003) (“This deliberate variation in terminology within the same sentence of a

statute suggests that Congress did not interpret the two terms as being equivalent.”)

Of course, the plain meaning of the terms is helpful. As the D.C. Circuit set out:

Dictionaries define a “correction,” as “the act of an instance of
making right what is wrong,” Black’s Law Dictionary (10th ed. 2014),
or “remedying or removing error or defect,” Webster’s Third New
International Dictionary, Unabridged (2017). A “resentencing” in
contrast, is “[t]he act or an instance of imposing a new or revised
criminal sentence.” Black’s Law Dictionary (10th ed. 2014). These
definitions suggest that corrections are limited to a specific type of
action taken with respect to the original judgment, while resentencings
could encompass a broader array of procedures.

United States v. Palmer, 854 F.3d 39, 47 (D.C. Cir. 2017). It is reasonable to

conclude, then, that § 2255 envisions two different kinds of sentence

modifications: a “correction” being a more limited remedy, responding to a

specific error; and a “resentencing” being more open-ended and discretionary,

something closer to beginning the sentencing process anew. We do not undertake

here to list every type of “resentencing,” however defined, which will require a

resentencing hearing.3 Instead, we address the question raised by Mr. Brown: did

3
It may be simplest to say “resentencings” under § 2255 are sentence modifications
involving a resentencing hearing, and “corrections” are sentence modifications done without a
resentencing hearing. This, of course, begs the question we must answer here: when a court is
required to resentence as opposed to correct.
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the modification to his sentence require his sentencing court to conduct a

resentencing hearing?

The Due Process Clause guarantees a defendant’s “right to be present at any

stage of the criminal proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730,

745, 107 S. Ct. 2658, 2667 (1987). Federal Rule of Criminal Procedure 43(a)(3),

which we have described as “constitutionally based,” Jackson, 923 F.2d at 1496,

specifies that a defendant’s right to be present includes his right to be present at

sentencing. Fed. R. Crim. P. 43(a)(3). This right is meant to “ensure that at

sentencing—a critical stage of the proceedings against the accused—the defendant

has an opportunity to challenge the accuracy of information the sentencing judge

may rely on, to argue about its reliability and the weight the information should be

given, and to present any evidence in mitigation he may have.” Jackson, 923 F.2d

at 1496–97. Beyond that, there is a defendant’s well-recognized right of allocution

at sentencing—a chance for the defendant “to make a final plea on his own behalf

to the sentencer before the imposition of sentence.” United States v. Prouty, 303

F.3d 1249, 1251 (11th Cir. 2002).

This Court has recognized that “[t]he established right to be present for

sentencing—or even for resentencing under certain circumstances—. . . does not

translate into a right to be present whenever judicial action modifying a sentence is

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taken.” Jackson, 923 F.2d at 1496. This is so because the act of changing a

sentence “is not a unitary phenomenon.” United States v. Bryant, 643 F.3d 28, 33

(1st Cir. 2011). As the First Circuit has explained:

Resentencings are various in kind and many are very narrow. At one
extreme, the resentencing ordered may be as unconstrained and open-
ended as an initial sentencing; but at the other extreme, a remand may
be so focused and limited that it involves merely a technical revision
of the sentence dictated by the appeals court and calls for no formal
proceeding—say, modifying the judgment to cut back to its legally
permitted length a supervised release term that exceeded what the
statute permits.

Id. at 32. The Federal Rules of Criminal Procedures themselves identify some

types of sentence modifications that do not require a defendant to be present,

namely for “the correction or reduction of sentence under Rule 35 or 18 U.S.C. §

3582(c).”4 Fed. R. Crim. P. 43(b)(4). This Court has also determined that a

resentencing hearing is not required when a District Court vacates and is required

to reinstate the exact same sentence. See United States v. Parrish, 427 F.3d 1345,

1348 (11th Cir. 2005) (per curiam).

This Court’s leading case on this issue, Jackson, describes one type of

sentence modification that does require a resentencing hearing with the defendant

4
For example, and as discussed above, Rule 35 addresses corrections “that resulted from
arithmetical, technical, or other clear error,” if a motion is made within 14 days of sentencing.
Fed. R. Crim. P. 35. Also, § 3582(c) allows for the modification of a sentence (1) upon motion
of the Director of the Bureau of Prisons under certain, limited circumstances; (2) where a
modification is expressly permitted by statute or Rule 35; or (3) when a defendant’s sentencing
range has subsequently been lowered pursuant to 28 U.S.C. § 994(o). 18 U.S.C. § 3582(c).
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in attendance: when a court is imposing “a new sentencing package after an

original sentencing package is vacated in its entirety on appeal.” 923 F.2d at 1496.

In Mr. Jackson’s case, he was sentenced on six counts. Id. at 1495. The District

Court determined that the sentences on two of the counts exceeded their statutory

maximum, but there was no error in the sentences on the remaining counts. Id. at

1496. The court chose to reduce the two unlawful sentences to their new statutory

maximum but also chose to modify those sentences to run consecutively to Mr.

Jackson’s most onerous count, rather than concurrently with it as they had been in

the original sentence. Id. This resulted in Mr. Jackson’s prison term being

reduced, but not by as much as it would have been if the two erroneous sentences

had remained concurrent. Id.

On these facts, this Court concluded that Mr. Jackson was not entitled to a

resentencing hearing. Id. at 1497. We held “that, where the entire sentencing

package has not been set aside, a correction of an illegal sentence does not

constitute a resentencing requiring the presence of the defendant, so long as the

modification does not make the sentence more onerous.” Id. In so holding, we

noted that “the purpose of allocution—to allow the defendant the opportunity to

challenge the information the original sentencing judge will rely upon as well as to

present evidence in mitigation—ha[d] already been accomplished.” Id. at 1498.

And even recognizing that part of Mr. Jackson’s sentence was in error, that error

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had not required the court to wipe the slate clean and start anew because there were

no errors in the sentences imposed for Mr. Jackson’s other counts of conviction.

Id. at 1496.

However, the rule in Jackson is rooted in the particular procedural posture of

the case at that time. Mr. Jackson’s appeal arose in the context of a Rule 35

motion, not a § 2255 motion. Id. at 1495. And the version of Rule 35 that applied

in Mr. Jackson’s case was much broader than the version in effect today. See id. at

1496 & n.1; see also United States v. Phillips, 597 F.3d 1190, 1196 n.11 (11th Cir.

2010). As a result, Mr. Jackson’s sentence modification qualified as a Rule 35

correction, and therefore Rule 43 did not require his presence at a resentencing

hearing. See Jackson, 923 F.2d at 1497. That would be different if Mr. Jackson’s

case had been brought under today’s version of Rule 35.

A more recent case, United States v. Taylor, 11 F.3d 149 (11th Cir. 1994)

(per curiam), further muddies the waters. In Taylor, this Court seemed to read

Jackson as tying the requirement for a resentencing hearing to whether a sentence

was modified pursuant to § 2255 as opposed to Rule 35. See id. at 151–52. The

Taylor panel noted that the District Court “could have [] treated” Mr. Taylor’s

motion “as a motion to correct an illegal sentence under Rule 35” and not provided

a resentencing hearing. But because the District Court had instead addressed his

motion as a § 2255 motion, vacated the entire sentencing package, and remanded

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for resentencing, a resentencing hearing with the defendant present was required.

Id. at 152.

Because both of these cases were brought under an expansive version of

Rule 35 that is no longer available, the cases do not bind us here. Even so, we find

the logic of Jackson persuasive. When an “entire sentencing package” has been

vacated, the sentencing court must revisit every part of the sentencing package.

And this more expansive remedy may require a defendant to be present at a

resentencing hearing to “contribute to the fairness of the procedure.” See Stincer,

482 U.S. at 745, 107 S. Ct. at 2667.

Still, there remains the question of what it means for an entire sentencing

package to be vacated. A purely formalistic test might require resentencing

hearings for every sentence modification made pursuant to § 2255. That is

because, by its terms, § 2255 requires a court to first “vacate and set the judgment

aside,” and then apply the appropriate remedy. See 28 U.S.C. § 2255(b).

However, our precedent takes a more pragmatic approach. Rather than relying

solely on a formal analysis of whether the sentences of all counts were vacated, we

undertake a more fact-intensive inquiry into whether the errors requiring the grant

of habeas relief undermine the sentence as a whole.

In Johnson v. United States, 619 F.2d 366, 368 (5th Cir. 1980), our

predecessor court performed this kind of analysis. The Fifth Circuit determined

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that two of the defendant’s three concurrent sentences were due to be vacated, and

that the defendant could only properly be sentenced on his one remaining count.

Id. Even though both parties argued that the court could leave the one remaining

count intact and vacate the two improper counts, the court remanded for a

resentencing hearing. Id. & n.6. The court observed that the sentencing judge had

an incorrect understanding about the applicable statutory maximum, so even if the

one remaining count was within that range, “[p]erhaps, after realizing that the

maximum sentence is only 25 years [rather than 55 years], the District Court may

conclude that a 20 year sentence is too harsh.” Id. at 368.

This approach is consistent with our Court’s rule that sentences on multiple

counts be considered as part of a single sentencing package. See United States v.

Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (per curiam). We have recognized that

“especially in the guidelines era, sentencing on multiple counts is an inherently

interrelated, interconnected, and holistic process which requires a court to craft an

overall sentence.” United States v. Fowler, 749 F.3d 1010, 1015 (11th Cir. 2014).

If there is a chance that an erroneous sentence on one count of conviction

influenced the sentencing judge’s decisions on other counts, then merely excising

the mistaken sentence for one count won’t put the defendant in the same position

as if no error had been made. A resentencing hearing with the defendant present

may therefore be required.

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At the other end of the spectrum, in Parrish, this Court determined that a

resentencing hearing was not required even though the defendant’s sentence was

vacated in its entirety after a successful § 2255 motion. 427 F.3d at 1348. The

error requiring the grant of habeas relief for Mr. Parrish was not limited to one of

his counts of conviction but extended to the entire judgment. But in order to

provide Mr. Parrish with the opportunity to file an out-of-time direct appeal, the

District Court vacated his sentence in its entirety and then reinstated the exact same

sentence without holding a resentencing hearing. Id. at 1346. On appeal, this

Court concluded that no resentencing hearing was necessary (even though Mr.

Parrish’s entire sentence had been set aside) because the reasons for requiring a

hearing with the defendant present did not apply. Mr. Parrish’s sentencing court

was simply reimposing the exact same sentence without exercising any kind of

discretion that the defendant could speak to. Id. at 1347–48.

Parrish thus suggests that merely identifying the type of error to be corrected

is not the end of our inquiry into whether a resentencing hearing is required. If a

sentencing court has no discretion in how it modifies a sentence—as in Parrish,

where the court was required to reinstate the exact same sentence—a resentencing

hearing may not be required. But if a court is called upon to exercise significant

discretion in modifying a sentence, a resentencing hearing may be required. This

Court has long recognized that if a modification makes a sentence more onerous, a

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resentencing hearing is required. See Jackson, 923 F.2d at 1497. A resentencing

hearing is also needed when a court must exercise its discretion in modifying a

sentence in ways it was not called upon to do at the initial sentencing. For

example, if the original sentencing court imposed a mandatory minimum sentence

that no longer applies, then a defendant’s resentencing hearing may be the first

opportunity he has to meaningfully “challenge the accuracy of information the

sentencing judge may rely on, to argue about its reliability and the weight the

information should be given, and to present any evidence in mitigation he may

have.” Id. at 1496–97. In a case like this, the defendant’s presence is required at a

resentencing hearing to “contribute to the fairness of the procedure.” Stincer, 482

U.S. at 745, 107 S. Ct. at 2667.

From our precedent, two inquiries emerge to guide our consideration of

whether a defendant is entitled to a resentencing hearing when a change to his

sentence is required as a result of his § 2255 motion. First, did the errors requiring

the grant of habeas relief undermine the sentence as a whole? Second, will the

sentencing court exercise significant discretion in modifying the defendant’s

sentence, perhaps on questions the court was not called upon to consider at the

original sentencing? When these factors are present, a District Court’s sentence

modification qualifies as a critical stage in the proceedings, requiring a hearing

with the defendant present. Stincer, 482 U.S. at 745, 107 S. Ct. at 2667.

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IV.

Applying this framework to Mr. Brown’s case, we note that he filed a habeas

petition challenging his one count of conviction. The District Court granted Mr.

Brown’s § 2255 motion and wrote that his sentence “is corrected to reflect a

revised term of 120 months’ incarceration followed by three years’ supervised

release.” The amended judgment describes Mr. Brown’s previous sentence as

having been “vacated following the Court granting Defendant’s Motion to Vacate

under 28 U.S.C. § 2255.” In effect, the District Court vacated the sentence on Mr.

Brown’s one and only count of conviction and modified his sentence without

conducting a resentencing hearing.

This supports our conclusion that the District Court abused its discretion.

Mr. Brown’s original sentence was set by the mandatory minimum under the

ACCA, 18 U.S.C. § 924(e)(1). When that sentence was found to be in error, his

new sentence was imposed under a different statutory provision, 18 U.S.C.

§ 924(a)(2). As a result, the only statutory basis for Mr. Brown’s sentence was

invalidated, and the District Court was required to resentence him under a new

statutory provision, with a new sentencing guidelines range. Because the sentence

on Mr. Brown’s one and only count of conviction was found to be in error, Mr.

Brown’s entire sentence was necessarily undermined, and the District Court was

tasked with crafting an entirely new sentence. As a result, Mr. Brown was entitled

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to a resentencing hearing. See Jackson, 923 F.2d at 1497; Johnson, 619 F.2d at

368.

The need for Mr. Brown to receive a resentencing hearing is also supported

by the wide discretion exercised by the District Court in imposing Mr. Brown’s

new sentence, especially when we consider Mr. Brown’s first sentencing hearing.

At that first sentencing hearing, both his attorney and the government asked the

court to sentence Mr. Brown to the 15-year mandatory minimum term set by the

statute. The court then briefly discussed Mr. Brown’s prior convictions before

stating “[t]his is a minimum mandatory case” and sentencing Mr. Brown to his

mandatory minimum sentence. The court made no other mention of Mr. Brown’s

presentence investigation report (“PSR”) or the 18 U.S.C. § 3553 factors. In total,

Mr. Brown’s original sentencing hearing lasted eight minutes. With such an

abbreviated procedure, and the District Court’s clear reliance on a mandatory

minimum that no longer applies, the District Court has not “made the necessary

credibility determinations and exercised the necessary discretion to fashion a

sentencing package which he has determined, in fact, is the appropriate penalty.”

Jackson, 923 F.2d at 1497. Mr. Brown’s presence is therefore required at a

resentencing hearing to “contribute to the fairness of the procedure.” Stincer, 482

U.S. at 745, 107 S. Ct. at 2667.

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The way the District Court exercised its discretion in modifying Mr.

Brown’s sentence also counsels in favor of having a hearing. Mr. Brown was

originally sentenced to a mandatory minimum 180-month term of imprisonment.

His corrected guideline range was 77 to 96 months of imprisonment, but the court

sentenced him to 120 months, which was the longest prison term permitted by

statute. Upward variances are meant to apply only after “serious consideration” by

the sentencing court, and only then when accompanied by a “sufficiently

compelling” justification. Gall v. United States, 552 U.S. 38, 46, 50, 128 S. Ct.

586, 594, 597 (2007). The fact that the District Court provided no justification for

imposing an upward variance to Mr. Brown’s sentence is itself error. See 18

U.S.C. § 3553(c)(2).

But even if the court’s written Statement of Reasons had included an

explanation, applying an upward variance is a clear act of open-ended discretion,

bolstering our conclusion that it was error for the court to modify Mr. Brown’s

sentence without a resentencing hearing. While it is true that the court that initially

imposes sentence is not required to provide advance notice that it is considering an

upward variance, “[s]ound practice dictates that judges in all cases should make

sure that the information provided to the parties in advance of the hearing, and in

the hearing itself, has given them an adequate opportunity to confront and debate

the relevant issues.” Irizarry v. United States, 553 U.S. 708, 715, 128 S. Ct. 2198,

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 Case: 16-14267 Date Filed: 01/18/2018 Page: 21 of 21

2203 (2008). Mr. Brown should have had an opportunity at a hearing to guide the

District Court’s discretion before it imposed an upward variance. He was given

none. Thus, the imposition of the new sentence based on an upward variance also

supports the conclusion that Mr. Brown’s attendance at the resentencing hearing is

essential to the just administration of his case.

V.

In conclusion, Mr. Brown was entitled to have a resentencing hearing and be

present there. That being the case, the District Court abused its discretion in

modifying Mr. Brown’s sentence without holding a hearing. Because we vacate

Mr. Brown’s sentence and remand for a resentencing hearing, we need not reach

Mr. Brown’s additional arguments that his sentence was procedurally and

substantively unreasonable.

On remand, the District Court should hold a resentencing hearing with Mr.

Brown and his counsel present. Only then, having considered the factors set forth

in § 3553(a) and explained the basis for any variance it may choose to impose, may

the District Court impose a new sentence on Mr. Brown.

VACATED AND REMANDED.

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