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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 16-16207; 17-13066
Non-Argument Calendar
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D.C. Docket Nos. 9:05-cr-80042-JIC-1,
9:16-cv-806662-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM G. HERNANDEZ,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
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(May 30, 2018)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
William Hernandez, a federal prisoner, appeals the district court’s decision
to correct his sentence without conducting a full resentencing hearing after the
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court granted his 28 U.S.C. § 2255 motion to vacate or correct his sentence in light
of Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). After careful
review, we affirm.
In 2005 Hernandez pled guilty to three counts of possession with intent to
distribute crack cocaine and one count of distribution of cocaine, 21 U.S.C.
§ 841(a)(1), one count of possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1), and one count of possession of a firearm in connection with a drug-
trafficking crime, 18 U.S.C. § 924(c)(1)(A). At his sentencing, the district court
determined that he qualified as an armed career criminal under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). The ACCA enhancement mandated
a sentence of at least fifteen years for the § 922(g)(1) offense. Without the
enhancement, the statutory maximum was ten years.
The ACCA enhancement, however, had no effect on Hernandez’s guideline
range. That range was determined under the career-offender guideline, U.S.S.G.
§ 4B1.1, specifically under § 4B1.1(c). Subsection (c) governs the calculation of
the guideline range for a career-offender defendant who is convicted of violating
§ 924(c). The district court calculated a guideline range of 262 to 327 months of
imprisonment based on the table in § 4B1.1(c)(3). Ultimately, Hernandez was
sentenced to concurrent 202-month sentences for the drug offenses and the
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§ 922(g)(1) offense, plus a consecutive 60-month sentence for the § 924(c) offense,
for a total, low-end guideline sentence of 262 months.
In 2016 Hernandez filed a motion to vacate or correct his sentence under 28
U.S.C. § 2255. He said that, in light of Johnson, he had been illegally sentenced
under the ACCA. The district court agreed and granted his motion. Then, without
holding a hearing, the court reduced his § 922(g)(1) sentence from 202 months to
the statutory maximum of 120 months. But the court left the remaining sentences
unchanged, reasoning that the ACCA error had no effect on them. As a result,
Hernandez’s total sentence remained at 262 months. Hernandez now appeals.
In an appeal from a § 2255 proceeding, we review legal issues de novo.
United States v. Brown, 879 F.3d 1231, 1234 (11th Cir. 2018). We review the
district court’s choice of § 2255 remedy for an abuse of discretion. Id. at 1235.
“[W]hen employing an abuse-of-discretion standard, we must affirm unless we
find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
2004) (en banc).
Section 2255 allows a federal prisoner to collaterally attack his sentence on
the grounds, among others, that the sentence “was imposed in violation of the
Constitution or laws of the United States” or “was in excess of the maximum
authorized by law.” 28 U.S.C. § 2255(a). When a district court grants a § 2255
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motion, it must do two main things. Brown, 879 F.3d at 1235. First, it “must
vacate and set the judgment aside.” Id. (quotation marks omitted). Second, it
“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. The terms “resentence” and “correct” define distinct
remedies. Id. at 1236. A “correction” is “a more limited remedy, responding to a
specific error,” and does not require a resentencing hearing. Id. at 1236 & n.3. A
“resentencing,” in contrast, is “more open-ended and discretionary, something
closer to beginning the sentencing process anew,” and requires a resentencing
hearing at which the defendant has the right to be present. Id.
Brown sets out the framework for deciding when a resentencing hearing
must be held after the grant of a § 2255 motion. At bottom, the critical question is
whether the sentence modification qualifies as a critical stage of the proceedings,
such that due process guarantees the defendant’s right to be present. Id. at 1236
(citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). Two inquiries guide that
determination: “First, did the errors requiring the grant of habeas relief undermine
the sentence as a whole?”; and “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?” Id. at 1239–
40. These inquiries are “fact-intensive.” See id. at 1238. When these factors are
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present, a sentence modification qualifies as a critical stage of the proceedings, and
a resentencing hearing with the defendant present is required. Id. at 1240.
As for the first inquiry, a resentencing hearing may be required “[i]f there is
a chance that an erroneous sentence on one count of conviction influenced the
sentencing judge’s decisions on other counts.” Id. at 1239. The general rule is that
sentences on multiple counts are “considered as part of a single sentencing
package.” Id. This reflects an understanding 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—the ‘sentence
package’—that reflects the guidelines and the relevant § 3553(a) factors.” United
States v. Fowler, 749 F.3d 1010, 1015 (11th Cir. 2014). So if there is a chance the
error undermined the sentence as a whole, resentencing may be necessary because
“merely excising the mistaken sentence for one count won’t put the defendant in
the same position as if no error had been made.” Brown, 879 F.3d at 1239.
As for the second inquiry, a resentencing hearing may be necessary “when a
court must exercise its discretion in modifying a sentence in ways it was not called
upon to do at the initial sentencing.” Id. That may occur, for example, if the
original sentencing court did not reach certain issues because it “imposed a
mandatory minimum sentence that no longer applies.” See id. With no applicable
mandatory minimum, the court may need to exercise its discretion—by resolving
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guideline application issues or addressing the 18 U.S.C. § 3553(a) factors—in
ways that were unnecessary at the original sentencing. See id. at 1240. For the
same reason, a resentencing hearing may be the defendant’s first opportunity to
meaningfully address certain issues pertinent to his sentence. Id. at 1239. In these
circumstances, due process may require a hearing with the defendant present. See
id. at 1239–40.
Applying this framework in Brown, we held that the district court abused its
discretion in failing to hold a resentencing hearing before modifying Brown’s
erroneously ACCA-enhanced sentence to the correct statutory maximum of ten
years. First, we said that Brown’s entire sentence was undermined by the ACCA-
error because the sentence on his “one and only count of conviction was found to
be in error.” Id. at 1240. Thus, the court “was tasked with crafting an entirely new
sentence” based on a different statutory provision and different guideline range.
Id. Second, we found that court exercised wide discretion in imposing Brown’s
new sentence. Id. We noted that, at the original sentencing hearing, the court
sentenced Brown to the mandatory minimum and did not discuss the guidelines or
the 18 U.S.C. § 3553(a). Id. And in modifying the sentence, the court applied a
significant upward variance from the corrected guideline range of 77 to 96 months
of imprisonment, which was a “clear act of open-ended discretion.” Id. at 1241. In
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light of all of these factors, we held that Brown was entitled to have a resentencing
hearing and be present there. Id.
In this case, however, the district court’s choice of remedy—a limited
correction to the sentence for the § 922(g)(1) offense without a hearing—was
reasonable under the circumstances. Hernandez argues that the district court
abused its discretion by refusing to vacate all of his sentences as a “sentencing
package” and conduct a full resentencing. 1 But neither of the two key factors
outlined in Brown are present here, so we cannot say that the “sentence
modification qualifie[d] as a critical stage in the proceedings, requiring a hearing
with the defendant present.” See id. at 1240.
First, while Hernandez faults the district court for failing to treat his entire
sentence as a package, he does not identify how the ACCA error influenced the
original sentencing court’s decisions on the other counts. See id. at 1239. In light
of the multiple counts of conviction under 21 U.S.C. § 841, the error did not
invalidate the “the only statutory basis” for his sentence. See id. at 1240. Each of
1
Hernandez also claims that the district court improperly applied the concurrent-sentence
doctrine. But the court did not apply that doctrine at all. The concurrent-sentence doctrine
allows a reviewing court to decline to review the validity of a conviction if the defendant has
valid, concurrent sentences on other counts of conviction and the defendant would not “suffer
adverse collateral consequences from the unreviewed conviction.” United States v. Bradley, 644
F.3d 1213, 1293 (11th Cir. 2011). Here, by contrast, the district court reached the merits of
Hernandez’s claim of ACCA error and corrected the error, but it declined to grant the remedy of
a full resentencing. Hernandez’s concurrent sentences, to be sure, are relevant to the
determination of whether a resentencing hearing was required. But for the reasons we explain,
the court’s choice of § 2255 remedy was no abuse of discretion.
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the four § 841 offenses carried, at the time of sentencing, a statutory sentencing
range of between five and forty years of imprisonment. So removing the § 924(e)
enhancement did not remove the statutory basis for the total sentence. Nor did it
affect the § 924(c) sentence, which was imposed to run consecutive to the
sentences for the drug offenses along with the § 922(g)(1) sentence. Additionally,
the ACCA error had no effect on Hernandez’s guideline range. That range was
determined under the career-offender guideline’s provisions for defendants who
are convicted of § 924(c), and it did not depend on the § 922(g)(1) offense or the
mandatory minimum. See U.S.S.G. § 4B1.1(c)(2)(B), (3). In sum, the ACCA
error did not undermine Hernandez’s sentence as a whole.
Second, the district court did not need to exercise significant discretion on
questions that it had not been called upon to consider at the original sentencing
hearing. See Brown, 879 F.3d at 1239–40. Unlike in Brown, where the mandatory
minimum exceeded the otherwise applicable guideline range, the ACCA-enhanced
mandatory minimum in this case was still well below Hernandez’s guideline range
of 262–327 months. Nor did the district court mention the mandatory minimum or
the § 922(g)(1) offense at the original sentencing hearing. Rather, the record
reflects that the court decided a sentence at the low end of the guideline range was
appropriate in light of the § 3553(a) factors. Plus, Hernandez has not identified
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any issues he was unable to meaningfully challenge during his original sentencing
due to the ACCA error. See id. at 1240.
For these reasons, the district court, even assuming it had the authority to
vacate Hernandez’s entire sentence and conduct a full resentencing, did not abuse
its discretion by correcting the ACCA error without holding a resentencing hearing
and without changing Hernandez’s total sentence. We therefore affirm.
AFFIRMED.
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