United States v. Larry Nichols

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0155p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 17-5580
v. │
│
│
LARRY D. NICHOLS, │
Defendant-Appellant. │
┘

Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:04-cr-00068-1—Travis R. McDonough, District Judge.

Decided and Filed: July 30, 2018

Before: BATCHELDER and CLAY, Circuit Judges; SARGUS, Chief District Judge.*
_________________

COUNSEL

ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Steven S. Neff, UNITED STATES
ATTORNEY’S OFFICE, Chattanooga, Tennessee, Debra A. Breneman, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

CLAY, J., delivered the opinion of the court in which SARGUS, D.J., joined.
BATCHELDER, J. (pp. 12–23), delivered a separate dissenting opinion.

*The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of
Ohio, sitting by designation.
 No. 17-5580 United States v. Nichols Page 2

_________________

OPINION
_________________

CLAY, Circuit Judge. Defendant Larry D. Nichols appeals from a corrected sentence
entered by the district court in an amended judgment pursuant to 28 U.S.C. § 2255.1 For the
reasons that follow, we VACATE Defendant’s corrected sentence and REMAND with
instructions for Defendant to be sentenced in a manner consistent with this opinion.

BACKGROUND

In 2004, Defendant was convicted for felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), (e). The statutory maximum sentence for that offense is ten years’
imprisonment. See § 924(a)(2). However, the district court found that Defendant qualified as an
armed career criminal under the residual clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). The ACCA overrode the ten-year statutory maximum for Defendant’s
conviction, instead requiring that the district court sentence Defendant to a minimum of fifteen
years’ imprisonment. See § 924(e)(1). The district court sentenced Defendant to a term of 288
months’ imprisonment, or 24 years.

While in prison, Defendant was convicted and sentenced for conspiracy to distribute
heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C); possession of heroin by an inmate, in
violation of 18 U.S.C. § 1791(d)(1)(C); and conspiracy, in violation of 18 U.S.C. § 371. The
district court sentenced Defendant to an additional 151 months’ imprisonment, to be served
consecutively to Defendant’s existing 24-year term of imprisonment for the firearm offense.

In 2015, the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally
vague. Johnson v. United States, 135 S. Ct. 2551 (2015). The Supreme Court later held that the
Johnson rule applies retroactively, Welch v. United States, 136 S. Ct. 1257 (2016), thereby
permitting Defendant to challenge his enhanced sentence under the ACCA. Defendant then filed

1The district court issued a single order that granted a § 2255 motion in Nichols’ civil proceeding and
imposed a corrected sentence in Nichols’ criminal proceeding. Because Nichols challenges only his corrected
sentence in this appeal, we refer to him as Defendant in this opinion.
 No. 17-5580 United States v. Nichols Page 3

a motion under 18 U.S.C. § 2255 in which he requested resentencing. The district court found
Defendant’s motion to be meritorious, but rather than conducting a full resentencing proceeding,
the district court elected to correct Defendant’s sentence by issuing a memorandum opinion and
order.

By the time the district court entered Defendant’s corrected sentence, Defendant had
already served twelve years in prison—two years in excess of the ten-year statutory maximum
for his firearm offense. The Guidelines range for Defendant’s conduct, absent the ACCA
enhancement, was 51 to 63 months’ imprisonment, which is well below the statutory maximum
of ten years. Based on his belief that a period of over-incarceration can be calculated and
credited toward the completion of a consecutive sentence, Defendant asked the district court to
impose a Guidelines-range sentence and, in any event, to impose a sentence of a specific term of
months. The district court denied Defendant’s request and instead imposed a corrected sentence
of “time served,” which was equivalent to a term of about twelve years’ imprisonment. (R. 52 at
PageID #347.) Defendant requested reconsideration, which the district court denied. Defendant
then filed this timely appeal.

DISCUSSION

On appeal, Defendant argues that his sentence of “time served” exceeds the statutory
maximum and that the sentence is unreasonable, regardless of its legality. We address each issue
in turn.

A. Legality of Defendant’s Sentence

District courts have broad discretion when making sentencing decisions. Gall v. United
States, 552 U.S. 38, 46 (2007). Indeed, this Court must give due deference to a district court’s
sentencing decision, even when that decision results in a sentence that is outside the
recommended Guidelines range. Id. at 51, 59. But a district court’s discretion has a firm
boundary in that each sentence must be “within statutory limits.” Apprendi v. New Jersey,
530 U.S. 466, 481 (2000). A sentence that exceeds the statutory maximum violates
“constitutional protections of surpassing importance,” including “the proscription of any
deprivation of liberty without ‘due process of law.’” Id. at 476–77. “Elementary notions of
 No. 17-5580 United States v. Nichols Page 4

fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not
only of the conduct that will subject him to punishment, but also of the severity of the penalty
that a State may impose.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996). Thus,
although we must give due deference to sentencing decisions that fall within statutory bounds,
we must also vacate any sentence that falls outside statutory bounds—even when the issue is not
raised by prisoners themselves. See United States v. Graham, 275 F.3d 490, 522 (6th Cir. 2001)
(“Both the Supreme Court and this circuit have found sua sponte consideration of plain error to
be appropriate to remedy unlawful sentences imposed by the district court.”). As the Tenth
Circuit recently explained, “illegal sentences ‘trigger per se, reversible, plain error.’” United
States v. Titties, 852 F.3d 1257, 1275 (10th Cir. 2017).

In this case, Defendant’s corrected sentence must be vacated. The district court imposed
a sentence of “time served” based on Defendant’s violation of 18 U.S.C. § 922(g), which carries
a statutory maximum sentence of ten years’ imprisonment. § 924(a)(2). Under the
circumstances of this case, a sentence of “time served” equates to a term of about twelve years’
imprisonment. Because the district court had no authority to impose a sentence of more than ten
years’ imprisonment, the court erred when it imposed Defendant’s corrected sentence. See
§ 924(a)(2); Graham, 275 F.3d at 522.

In support of its decision to impose a sentence exceeding the statutory maximum, the
district court cited a “standard procedure” calling for the “impos[ition of] a corrected term of
‘time served’ where a petitioner entitled to Johnson-based collateral relief has already served in
excess of the 120-month statutory maximum applicable to non-ACCA offenders under 18 U.S.C.
§ 924(a)(2).” (R. 59 at PageID #396.) However, all of the cases cited by the district court in
support of this procedure involved prisoners who were eligible for immediate release following
the correction of their sentences to “time served.” See Hayes v. United States, No. 4:16 CV 926
CDP, 2016 WL 4206028, at *3 (E.D. Mo. Aug. 10, 2016) (imposing corrected sentence of “time
served,” resulting in defendant’s immediate release); McBee v. United States, No. 4:06-CR-17-
HSM-SKL-1, 2016 WL 3962996, at *3 (E.D. Tenn. July 21, 2016) (granting expedited motion to
modify sentence and giving Bureau of Prisons 10 days “to process Petitioner’s release”); Hadley
v. United States, No. 102CR147TRMSKL1, 2016 WL 3746567, at *3 (E.D. Tenn. July 7, 2016)
 No. 17-5580 United States v. Nichols Page 5

(same); Phillips v. United States, No. 216CV02288JPMCGC, 2016 WL 3039990, at *4 (W.D.
Tenn. May 27, 2016) (same); United States v. Husbands, No. 4:01CR77/MCR/GRJ, 2016 WL
3702676, at *1 (N.D. Fla. July 12, 2016) (modifying sentence to “time served,” resulting in
defendant’s immediate eligibility for release); Cox v. United States, No. 3:05-CR-74-RJC-CH-1,
2016 WL 3514454, at *3 (W.D.N.C. June 27, 2016) (modifying defendant’s sentence to “time
served” and ordering “immediate release from custody); United States v. Lillard, No.
8:02CR374, 2016 WL 3033703, at *1 (D. Neb. May 26, 2016) (modifying sentence to “time
served” and concluding “it is in the interests of justice to release the defendant”). Therefore,
these prisoners had no reason to challenge their corrected sentences as unlawful, and doing so
may have only prolonged their confinement.

By contrast, the modification of Defendant’s sentence to “time served” did not result in
Defendant becoming eligible for immediate release; Defendant will not be eligible for release
until he completes his consecutive sentence for the conviction he received while incarcerated.
Defendant would like to argue that his period of over-incarceration should be applied toward the
latter sentence. The district court found that Defendant should not be permitted to obtain such an
outcome, offering its opinion that “[a]voiding the creation of such ‘time banks’ makes complete
sense as a matter of sentencing policy.” (R. 59 at PageID #397 n.2.) But that issue was not
before the district court. As the government now admits, “[t]his is not a case in which the district
court had ‘jurisdiction and authority to reevaluate the entire aggregate sentence’ because the
original sentence had been deemed a unified ‘packaged’ or interdependent ‘components of a
single comprehensive sentencing plan.’” (Gov. Br. 11–12 (emphasis original) (citing
Pasquarille v. United States, 130 F.3d 1220, 1222 (6th Cir. 1997).) Rather, the only issue before
the district court—and now before this Court—is how to bring Defendant’s sentence for the
violation of § 922(g) into compliance with the law. Regardless of its opinion about sentencing
policy, the district court could not lawfully impose a sentence of more than ten years’
imprisonment. See Apprendi, 530 U.S. at 481; BMW, 517 U.S. at 574. The court therefore erred
when it entered a sentence of “time served” where “time served” equated to a term in excess of
the statutory maximum sentence.
 No. 17-5580 United States v. Nichols Page 6

The government argues that the district court committed no error—or that the district
court’s error was inconsequential—because “[a] district court cannot actually turn back the clock
to reduce the number of months a defendant has already spent in custody,” and therefore
“‘correcting’ a sentence to a term of months less than the number of months already served by a
defendant amounts to a legal fiction.” (Gov. Br. 8.) But there is nothing fictional about the
deprivation of liberty associated with over-incarceration. See Pollard v. United States, 352 U.S.
354, 358 (1957) (allowing a defendant who had already served his time to challenge the length of
his sentence due to the “possibility of consequences collateral to the imposition of [the]
sentence”). Once Defendant completed his sentence for the violation of § 922(g), which he did
after no more than ten years in prison, the government had no authority to continue to confine
him for that offense. The only legal fiction in these circumstances is the district court’s use of
“time served” as equivalent to “twelve years’ imprisonment.” A sentence in excess of the
statutory maximum is unlawful, regardless of how it is disguised and regardless of the amount of
time the defendant has already served. See Apprendi, 530 U.S. at 481; Graham, 275 F.3d at 522;
Titties, 852 F.3d at 1275.

Meanwhile, the dissent picks up the torch of the lone dissent in Welch, lamenting the
“steep price” of correcting unconstitutional sentences. From the dissent’s point of view, we
should not “years later pretend that it [the sentence] was actually illegal from the start” because
“at all times prior to Welch, [Defendant] was incarcerated lawfully under a sentence mandated by
Congress.” The Supreme Court has twice explained the flaw in this premise. In Johnson, the
Supreme Court explained that the residual clause—the supposed “mandate” to which the dissent
refers—is invalid. Johnson, 135 S. Ct. at 2560. Writing for the majority, Justice Scalia
explained that the residual clause is too “shapeless a provision to condemn someone to prison for
15 years to life” and that the clause therefore “does not comport with the Constitution's guarantee
of due process.” Id. Then, in Welch, the Supreme Court explained that the vagueness of the
residual clause meant that every sentence previously entered pursuant to it was invalid because
“a court lacks the power to exact a penalty that has not been authorized by any valid criminal
statute.” Welch, 136 S. Ct. at 1268. The dissent’s observation that Defendant was “incarcerated
lawfully” therefore misses the mark. Just as it “is objectively unlawful and outside the scope of
Presidential authority” to order the “forcible relocation of U.S. citizens to concentration camps,
 No. 17-5580 United States v. Nichols Page 7

solely and explicitly on the basis of race,” Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018), it is
beyond the authority of Congress to order the imprisonment of citizens based on a “wide-ranging
inquiry” that “both denies fair notice to defendants and invites arbitrary enforcement by judges,”
Johnson, 135 S. Ct. at 2557. When a governmental action is unconstitutional, Congressional
authorization is irrelevant.

This analysis is unchanged by the dissent’s parade of horribles. The dissent asks, for
instance, “[h]ow many corrected sentences will be now per se reversible plain error?” And,
“[h]ow many inmates, like Nichols, will discover that they have long been unlawfully
incarcerated, and what will be the effect of that discovery?” The dissent, it seems, would like to
pretend that inmates like Defendant were never subjected to unconstitutional sentences—that the
residual clause suddenly became vague as the Supreme Court penned Johnson rather than being
unconstitutionally vague all along. On this premise, the dissent proposes that “Welch stops the
sentence when the district court grants the § 2255, whereupon the 15-year minimum no longer
applies and the 10-year maximum immediately begins to apply, with the result that Welch’s
retroactivity allows the district court to apply Johnson to correct the sentences that were imposed
prior to Johnson, but does not empower the district court to change any sentences that were
served prior to the award of the § 2255.” This paradigm might be administratively convenient
for the courts, but it ignores the constitutional underpinnings of Johnson and Welch.

The dissent then muddies the waters by raising a “concern” about the applicable standard
of review. The dissent suggests that Defendant “is merely challenging the district court’s
discretionary choice of relief under § 2255” and that “[u]nder an abuse-of-discretion standard,
. . . the majority would likely agree to affirm the district court.” But Defendant’s appeal has little
to do with § 2255 or with the abuse-of-discretion standard. In the district court, Defendant filed
a § 2255 motion, which the district court correctly granted. The district court then had discretion
to grant relief to Defendant in one of four forms: discharge him, resentence him, grant him a
new trial, or correct his sentence. 28 U.S.C. § 2255(b). Defendant does not challenge the district
court’s choice to correct his sentence rather than to, for instance, grant a new trial. Rather,
Defendant challenges the correctness of his corrected sentence. Because the district court had no
 No. 17-5580 United States v. Nichols Page 8

discretion to impose an unconstitutional sentence, the dissent’s hypothetical inquiry into whether
the district court abused its discretion is nonsensical.

Finally, the dissent complains that today’s decision conflicts with two unpublished cases.
The first of these cases, United States v. Watkins, 692 F. App’x 307, 308 (8th Cir. 2017), is not
even from this circuit, and the dissent admits that “its analysis is cursory, almost conclusory.”
The second of these cases, United States v. Perotti, 702 F. App’x 322 (6th Cir. 2017), supposedly
stands for the proposition that a sentence is per se unreviewable once it is corrected to “time
served” because the termination of the prisoner’s confinement moots any potential challenge. As
an unpublished case, Perotti is not binding on this panel. Moreover, Perotti’s supposed rule
flatly contradicts the Supreme Court’s holding in Pollard. See Pollard, 352 U.S. at 358. To the
extent that Perotti is inconsistent with Pollard, it is not—and never was—good law.

B. Reasonableness of Defendant’s Sentence

Defendant also argues that his sentence must be vacated for the independent reason that
it is unreasonable. Before addressing the merits of this argument, however, we must decide a
threshold question of first impression in this Circuit: whether corrected sentences are subject to
reasonableness review. We conclude that they are. We have previously explained, without
limitation, that we “review sentences for reasonableness.” United States v. Collington, 461 F.3d
805, 807 (6th Cir. 2006); see also United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008) (“We
review sentences imposed by the district court for reasonableness.”). The Supreme Court’s
guidance on this issue is similarly sweeping. See Rita v. United States, 551 U.S. 338, 341 (2007)
(“The federal courts of appeals review federal sentences and set aside those they find
‘unreasonable.’”). Moreover, although § 2255(b) gives the district court “wide berth in choosing
the proper scope of post-2255 proceedings,” Ajan v. United States, 731 F.3d 629, 633 (6th Cir.
2013) (quoting United States v. Jones, 114 F.3d 896, 897 (9th Cir. 1997)), and permits the
district court to grant relief in a form that “may appear appropriate,” id. (quoting § 2255(b)), the
statute does not purport to override the reasonableness standard of review. The government
provides no argument to the contrary. We therefore review Defendant’s corrected sentence for
reasonableness.
 No. 17-5580 United States v. Nichols Page 9

Reasonableness review requires that each sentence be both procedurally and
substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is
procedurally unreasonable if the district court “fail[s] to calculate (or improperly calculate[es])
the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a)
factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the
chosen sentence—including an explanation for any deviation from the Guidelines range.” Id.
Meanwhile, “a sentence may be substantively unreasonable where the district court ‘selects the
sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
§ 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor.’” United
States v. Moon, 513 F.3d 527, 543 (6th Cir. 2008) (quoting Collington, 461 F.3d at 808).

Applying this standard, we find the district court’s order to be a plainly inadequate
foundation for Defendant’s sentence. After finding that Defendant does not qualify as an armed
career criminal and that Defendant’s original sentence was therefore unlawful, the district court’s
order states the following:

For purpose of the current case, the Court finds correction of Petitioner’s sentence
to be the most appropriate form of relief. Despite this, Petitioner is not entitled to
immediate release, however, because he incurred an additional federal conviction
while incarcerated for the instant offense. . . .
Petitioner has already served twelve years in prison (Doc. 51, at 5), a total
exceeding the ten-year custodial maximum applicable to him post-Johnson. As a
result, his motion (Doc. 50) will be GRANTED and the term of imprisonment for
the instant offense will be reduced to a “time served” sentence. The judgment
dated December 14, 2004 (Doc. 28) will be AMENDED to reflect a term of
supervised release of three years. The Clerk’s Office will be DIRECTED to
prepare an amended judgment in accordance herewith.

(R.52 at PageID #347 (citation omitted).) The order contains no analysis whatsoever in support
of the corrected sentence. The correction to Defendant’s sentence was the removal of an ACCA
enhancement. Following this correction, Defendant’s recommended Guidelines range was 51 to
63 months’ imprisonment. The district court’s order contains no reference to this Guidelines
range, nor does it contain any acknowledgement that the length of the sentence imposed—twelve
years—reflects a major departure from the recommended Guidelines range. This deficiency
renders the sentence procedurally unreasonable because, on appellate review, we are unable to
 No. 17-5580 United States v. Nichols Page 10

determine whether the district court properly used the Guidelines as “the starting point and the
initial benchmark” for the corrected sentence. Gall, 552 U.S. at 49. And to the extent that the
district court selected the length of Defendant’s sentence based on the length of time that
Defendant had already served at the time his § 2255 motion was adjudicated, the sentence is also
substantively unreasonable. See Moon, 513 F.3d at 543 (explaining that a sentence of arbitrary
length is substantively unreasonable).

Moreover, the corrected sentence is procedurally unreasonable for the independent reason
that the district court “fail[ed] to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. Because the
district court elected to correct Defendant’s sentence rather than to conduct a de novo
resentencing, the district court could properly rely on the explanation that the sentencing court
originally provided in support of Defendant’s sentence. See Chavez-Meza v. United States,
138 S. Ct. 1959, 1967 (2018) (explaining in the context of a sentence modification that the court
“need not turn a blind eye to what the judge said at petitioner's initial sentencing”). But to the
extent that Defendant’s meritorious § 2255 motion rendered the original explanation insufficient
“to allow for meaningful appellate review and to promote the perception of fair sentencing,” id.
at 50, the district court was obligated to supplement the original explanation. Cf. United States v.
Blackie, 548 F.3d 395, 401–02 (6th Cir. 2008) (finding that a district court “plainly erred when it
did not refer to the applicable Guidelines range and failed to provide its specific reasons for an
upward departure or variance at the time of sentencing or in the written judgment and
commitment order” (emphasis omitted)); United States v. Penson, 526 F.3d 331, 338 (6th Cir.
2008) (finding sentence unreasonable where district court “provided virtually no explanation
giving insight into the reasons for the specific sentence given”). The district court’s order in this
case contains no reference to Defendant’s original sentencing proceedings, no attempt to
supplement those proceedings, and no independent explanation for the corrected sentence. The
sentence therefore cannot survive reasonableness review and must be vacated.

The dissent disagrees, raising a strawman concern: requiring corrected sentences to
satisfy reasonableness review effectively “merges ‘corrected sentences’ and ‘resentencings’”
under § 2255. Under today’s decision, however, a court imposing a corrected sentence will have
 No. 17-5580 United States v. Nichols Page 11

discretion to impose a corrected sentence based on a brief order, a hearing that resembles a de
novo sentencing proceeding, or anything in between. A court’s discretion on this measure will
be guided by the requirement that the corrected sentence be procedurally and substantively
reasonable. If the court finds that the original sentencing court’s calculations and explanations
are irrelevant to the corrected sentence, then the court might find that it must enter an extensive,
detailed order, or it might even hold a hearing. But this will not be necessary in every case.
When the court imposes a corrected sentence that is largely consistent with the rationale of the
original sentence, a de novo resentencing would be largely redundant and wasteful.
Consequently, the dissent’s fear that today’s decision “effectively excise[s] the ‘correct the
sentence’ option from § 2255(b)” is unfounded. District courts are surely competent to judge the
extent to which they must supplement the record.

CONCLUSION

We VACATE Defendant’s corrected sentence and REMAND with instructions for
Defendant to be sentenced in a manner consistent with this opinion.
 No. 17-5580 United States v. Nichols Page 12

_________________

DISSENT
_________________

ALICE M. BATCHELDER, Circuit Judge, dissenting. The majority opinion, at least as
I understand it, begins reasonably enough with the premise that when a district court grants
§ 2255 relief and corrects an inmate’s sentence, based on retroactive application of Johnson v.
United States, 576 U.S. --, 135 S. Ct. 2551 (2015), it must adhere to any newly applicable
statutory sentencing mandates. But the majority goes further than I would go, holding that a new
time-served sentence necessarily equates to a term-of-months sentence of the number of months
actually already served, that such a sentence is illegal if the number of months exceeds the newly
applicable statutory maximum, and that such an illegal sentence is per se reversible plain error.
The majority also holds that the court must conduct a full resentencing sufficient for
reasonableness review. Because I see so much of this differently, I must respectfully dissent.

I.

The problem here—Nichols’s corrected sentence—was a foreseeable consequence of
Welch v. United States, 578 U.S. --, 136 S. Ct. 1257 (2016), which made Johnson retroactive,1
albeit “at a steep price,” id. at 1269 (Thomas, J., dissenting). The Welch Court summarized:

Before Johnson, the [Armed Career Criminal] Act applied to any person who
possessed a firearm after three violent felony convictions, even if one or more of
those convictions fell under only the residual clause. An offender in that situation
faced 15 years to life in prison. After Johnson, the same person engaging in the
same conduct is no longer subject to the Act and faces at most 10 years in prison.

Id. at 1265. When the district court set Nichols’s original sentence in December 2004, “before
Johnson,” the Act applied and Nichols faced a 15-year statutory mandatory minimum sentence
(and actually received a 24-year sentence). Then the Supreme Court issued Johnson in July
2015, making Nichols “no longer subject to the Act” or its 15-year statutory mandatory
minimum. So when the district court imposed Nichols’s corrected sentence in October 2016,

1In Johnson, 135 S. Ct. at 2563, the Court invalidated the “residual clause” of the Armed Career Criminal
Act (ACCA or “Act”), 18 U.S.C. § 924(e), as unconstitutionally vague.
 No. 17-5580 United States v. Nichols Page 13

“after Johnson,” Nichols faced “at most” a 10-year statutory maximum sentence. Of course, at
that point, Nichols had already served over 12 years in prison (July 2004 to October 2016).2

Nichols is by no means unique. There are many federal inmates across the country, who
are or soon will be seeking relief based on Johnson/Welch, and who fall into this same
circumstance of having already served more than the newly applicable 10-year maximum. There
are already 18 such cases in the U.S. District Courts in Tennessee, where this case arose. 3 In
each case, the court issued a corrected sentence of “time served.” See, e.g., Hammonds v. United
States, No. 2:05-CR-52, 2017 WL 3403429, at *4 (E.D. Tenn. Aug. 7, 2017) (collecting cases)
(opining that “a large number of district courts across the country have been imposing ‘time
served’ sentences upon petitioners entitled to Johnson relief who already had served time in
excess of the statutory maximum applicable to them as non-armed career criminals”). In
granting Nichols § 2255 relief, the district court here merely did likewise and corrected his
sentence to time served, effectively ending the sentence for that offense as thus completed.

From Nichols’s perspective, the district court’s corrected sentence of time served was
actually a de facto sentence of 12 years, meaning that the district court “illegally” sentenced him
to a term that was two years more than the newly applied statutory maximum. Moreover, under
this theory, once Nichols had completed 10 years in prison by July 2014, the government had no
authority to continue to confine him for that offense. Thus, he insists that the court was at
fault—or at least not free from fault—for his “unlawful incarceration” from July 2014 on.

2According to the docket, police arrested Nichols in July 2004, and he remained incarcerated. Presumably,
the Bureau of Prisons began counting his incarceration at that time for purposes of his sentence.
3See Hill v. United States, 2018 WL 358516 (W.D. Tenn. Jan. 10, 2018); Riffey v. United States, 2017 WL
3820957 (E.D. Tenn. Aug. 31, 2017); Crowder v. United States, 2017 WL 3668432 (E.D. Tenn. Aug. 24, 2017);
White v. United States, 2017 WL 3496461 (W.D. Tenn. Aug. 15, 2017); Forrest v. United States, 2017 WL 3485010
(W.D. Tenn. Aug. 14, 2017); Goodman v. United States, 2017 WL 3468558 (W.D. Tenn. Aug. 11, 2017); Rainwater
v. United States, 2017 WL 3446294 (W.D. Tenn. Aug. 10, 2017); Hammonds v. United States, 2017 WL 3403429
(E.D. Tenn. Aug. 7, 2017); Driggans v. United States, 2017 WL 3326750 (E.D. Tenn. Aug. 3, 2017); Wilson v.
United States, 2017 WL 3261772 (E.D. Tenn. July 31, 2017); Odoms v. United States, 2017 WL 3261770 (E.D.
Tenn. July 31, 2017); Bearden v. United States, 2017 WL 3172747 (W.D. Tenn. July 26, 2017); Dotson v. United
States, 2017 WL 3165118 (E.D. Tenn. July 25, 2017); Mitchell v. United States, 257 F.Supp.3d 996 (W.D. Tenn.
2017); Jackson v. United States, 2016 WL 7168089 (E.D. Tenn. Dec. 8, 2016); McBee v. United States, 2016 WL
3962996 (E.D. Tenn. July 21, 2016); Hadley, 2016 WL 3746567; Phillips v. United States, 2016 WL 3039990
(W.D. Tenn. May 27, 2016). See also United States v. Lee, 2016 WL 4179292, at *2 (D. Hawai’i Aug. 4, 2016).
 No. 17-5580 United States v. Nichols Page 14

From the district court’s perspective, however, until Johnson was decided in July 2015,
the 15-year minimum was mandated by statute and not subject to judicial discretion. See
Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (recognizing that judicial discretion is limited
to “imposing sentence within statutory limits”). As of July 2014 (or even July 2015 for that
matter, given that Welch did not make Johnson retroactive until April 2016), the court had no
authority to adjust Nichols’s sentence, much less order him released. Nichols filed his § 2255
motion in September 2016, arguing that Johnson removed the mandatory minimum and Welch
applied Johnson retroactively. The court granted the motion and corrected Nichols’s sentence in
October 2016. Had Nichols filed this motion in July 2014 (or July 2015 or even March 2016),
the court could not have granted relief or adjusted the sentence—at all times prior to Welch,
Nichols was incarcerated lawfully under a sentence mandated by Congress. Because the court
could not have adjusted Nichols’s sentence any sooner than it did,4 Nichols’s argument that he
was “incarcerated unlawfully” or that the court was at fault is built on the fiction that even
though the prison sentence was legal (and inalterable) while Nichols was actually serving it, we
can now years later pretend that it was actually illegal from the start.

In short, Congress ordered the district court to imprison Nichols for at least 15 years and
then, after 12 years, the Supreme Court held that the prior (congressional) order no longer
applied and so forbade the district court from imprisoning Nichols for any longer than 10 years.
Despite the obvious byproduct of this holding—that Nichols and many inmates like him would
have already served more than the newly applied 10-year maximum—the Court did not provide
specific instruction or guidance for addressing this scenario. When Nichols moved for relief
based on this new command, the district court—like Lady Macbeth, recognizing that “What’s
done cannot be undone,” Macbeth, Act 3, Sc. 2—acknowledged that Nichols had served more
time than is now required to punish his offense, more than is now permitted in fact, and corrected
Nichols’s sentence to time served, immediately ending the punishment.

Nichols was not satisfied with this “correction,” however, and wanted the district court to
resentence him to a set term of months—preferably 51 to 63 months under a new advisory

4As a practical matter, the district court was not obliged to address Nichols’s sentence until Nichols moved
for some action. He did not do so until September 2016, at which point the court acted rather quickly.
 No. 17-5580 United States v. Nichols Page 15

guidelines calculation or, alternatively, to 120 months under the newly applicable statutory
maximum—so that “[t]he time [Nichols] has served past 120 months can be credited to another
case.” The district court’s refusal led to this appeal.

The majority agrees with Nichols and holds that the district court’s corrected sentence
was illegal and its underlying decision unreasonable. The majority’s remand instructs the district
court to perform a full resentencing so as to calculate a specific term of months, as Nichols
requests, and provide sufficient explanation to permit a reasonableness review in a potential
future appeal. Because I have certain concerns or disagreements, I must respectfully dissent.

II.

The first concern is the proper standard of review. In his § 2255 motion, Nichols
expressly requested a term-of-months sentence, saying: “Rather than a ‘time served’ sentence
upon reversal, Mr. Nichols respectfully requests either a guideline sentence or a sentence that
specifically assigns a number of months to serve.” The government supported § 2255 relief but
offered that “the custodial portion of [Nichols’s] sentence should be reduced to time served.”
When the district court granted the motion eight days later it mistakenly thought that both parties
wanted time served and did not address other possibilities, such as a specific term of months.
See Nichols v. United States, No. 1:04-CR-68, 2016 WL 5921780, at *1 (E.D. Tenn. Oct. 11,
2016) (asserting that “both parties agree the sentence should be corrected to ‘time served’”).5
Nichols filed a Rule 59(e) motion to reconsider, arguing that the court ruled before he had time
to reply and reasserting his request for a term of months. Specifically, he argued for a within-
guidelines sentence of 51 to 63 months, or perhaps “a slight upward variance,” but argued
against a 120-month maximum sentence, saying:

Without the unconstitutional sentencing enhancements of the Armed Career
Criminal Act, Mr. Nichols’ advisory guideline range should be 51 to 63 months
incarceration. . . . A 120-month sentence would be double the high-end of Mr.
Nichols’ guideline range. While Mr. Nichols’ post-sentence behavior might
warrant a sentence at the top of his appropriate guideline range, or even a slight

5According to the docket, Nichols filed his § 2255 motion on September 2, 2016; the government
responded on October 3, 2016, and the court entered judgment on October 11, 2016.
 No. 17-5580 United States v. Nichols Page 16

upward variance, it does not justify such an upward departure/variance [to 120
months, which is] 57 months over the top of a guideline range of 51 to 63 months.
Mr. Nichols respectfully moves this Honorable Court to reconsider its imposition
of a ‘time served’ sentence and instead impose a sentence consistent with Mr.
Nichols’ appropriate guideline range.

Consequently, the first time the district court confronted Nichols’s term-of-months-versus-time-
served argument, it did so under a Rule 59(e) motion in which Nichols argued strongly for a 51-
to-63-month within-guidelines sentence, and just as emphatically argued against a time-served
sentence or even a possible 120-month maximum sentence.

Ordinarily, we review the denial of a motion to alter or amend a judgment under Rule
59(e) for an abuse of discretion but, to the extent that the denial was based on an erroneous legal
doctrine, we review it de novo. Morris Aviation, LLC v. Diamond Aircraft Indus., Inc., 536 F.
App’x 558, 569 (6th Cir. 2013) (citing Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 476
(6th Cir. 2007)). In one sense, Nichols is merely challenging the district court’s discretionary
choice of relief under § 2255. In the district court, Nichols did not cite any controlling legal
authority for a within-guidelines sentence or against a time-served sentence.6 Nor did Nichols
provide the court with any compelling reason for his preferred sentence, other than his hope that
the Bureau of Prisons would give him credit for his “over-incarceration” towards his pending,
unrelated, consecutive sentence, by back-dating its beginning to the end of this sentence. The
district court clearly anticipated an abuse-of-discretion standard in its ruling, explaining:

[Nichols] hopes [to] creat[e] an identifiable period of over-incarceration that the
Bureau of Prisons can credit toward his completion of the consecutive 151-month
term of imprisonment imposed by the Western District of Virginia.
In response, the United States . . . [argues that Nichols] has not identified any
issue of law or fact previously overlooked and instead disputes the nature of the
discretionary relief afforded. In addition to noting that courts have routinely
imposed ‘time served’ sentences where the defendant served more than 120
months in custody, the United States argues that the requested alteration would
confer an unwarranted windfall and improperly interfere with the sentencing
authority of another district court. This [c]ourt agrees that [] it would not be
appropriate to alter or amend [Nichols]’s ‘time served’ sentence.

6The government, on the other hand, cited numerous cases in which district courts had been imposing time-
served sentences under similar circumstances. See fn. 3, supra.
 No. 17-5580 United States v. Nichols Page 17

[Nichols] has not identified, and this court is unaware of, any authority that
suggests it is an abuse of discretion for a district court to impose a corrected term
of ‘time served’ where a petitioner entitled to Johnson-based collateral relief has
already served in excess of the 120-month statutory maximum applicable to non-
ACCA offenders under 18 U.S.C. § 924(a)(2). To the contrary, numerous district
courts have done just that.

Under an abuse-of-discretion standard, I believe the majority would likely agree to affirm the
district court.

The majority, however, appears to find that the district court relied on “an erroneous legal
doctrine,” and reviews the judgment de novo. See Morris Aviation, 536 F. App’x at 569. The
majority begins from the proposition that “[u]nder the circumstances of this case, a sentence of
‘time served’ equates to a term of about twelve years’ imprisonment.” As already pointed out,
this is based on the false premise that—even though the court’s judgment ordering Nichols
imprisoned was indisputably lawful (in fact, inalterable based on then-governing statute) when
the court imposed it and for the entire 12 years Nichols was serving it—the majority can ex post
facto declare the sentence and its authorizing judgment to have been illegal, thereby creating two
“legal fictions”: (1) that Nichols was over-incarcerated; and (2) that the district court is just now
sentencing Nichols tabula rasa, as if he could serve some amount of time other than the 12 years
he has already actually served. Thus, the majority holds that the time-served sentence “equate[s]
to a term in excess of the statutory maximum sentence,” that sentences in excess of the statutory
maximum are illegal, Apprendi, 530 U.S. at 481, and that “illegal sentences trigger per se,
reversible plain error.” Put another way, the majority rests its de novo review, and its ultimate
decision, on a purported “legal doctrine”: when determination of a statute’s unconstitutionality is
made retroactive, the past actions taken under that statute are also retroactively unlawful—a
result which, if true, would surely confer upon the victim (here, the inmate) the right to a remedy
for having suffered that unlawful act.

The merit of this “legal doctrine” is questionable. See, e.g., Davis v. United States,
564 U.S. 229, 243 (2011) (“Retroactive application does not, however, determine what
‘appropriate remedy’ (if any) the defendant should obtain.”); Montgomery v. Louisiana, 577 U.S.
--, 136 S. Ct. 718, 736 (2016) (declaring that Miller v. Alabama, 567 U.S. --, 132 S. Ct. 2455
(2012), which held life-without-parole sentences for juveniles to be unconstitutional, is
 No. 17-5580 United States v. Nichols Page 18

retroactive but conceding that “[a] State may remedy [such] violation by permitting juvenile
homicide offenders to be considered for parole, rather than by resentencing them”). But if it is
proper to frame the issue here as a challenge to an “erroneous legal doctrine,” then that alone
would be sufficient to justify the majority’s de novo review, regardless of the merit of that legal
doctrine.

III.

The next concern is the potential for mootness. In United States v. Perotti, 702 F. App’x
322, 322-23 (6th Cir. 2017), cert. denied, 138 S. Ct. 1280 (2018), the district court granted John
Perotti § 2255 relief based on Johnson/Welch, and imposed a corrected sentence of time
served—“Perotti had served nearly twelve years in federal custody [and] was then taken into
state custody where he remains.” On appeal, Perotti argued that the time-served sentence
equated to a term of nearly 12 years, which exceeded the newly applicable 10-year statutory
maximum, meaning the sentence was illegal on its face and the court must instead calculate a
term-of-months sentence based on the guidelines and § 3553 factors.

We dismissed Perotti’s appeal, finding that Perotti was “challenging only the part of his
sentence he ha[d] already completed,” which meant that he lacked a live case or controversy
necessary to give us appellate jurisdiction and, therefore, “Perotti’s challenge to his sentence was
mooted when he was released from federal custody.” Id. at 323. We recognized that Perotti did
remain incarcerated, despite the § 2255 relief, but explained that “Perotti’s current imprisonment
is the result of a violation of . . . a state charge that is not before us.” Id. at 325.

Pursuant to Perotti, Nichols’s appeal would also be moot. The only difference is that
Perotti was subsequently incarcerated under a judgment from a state court while Nichols was
subsequently incarcerated under a judgment from a different federal court, namely the U.S.
District Court for the Western District of Virginia. Nichols, 2016 WL 5921780, at *4 n.2. For
our purposes, however, this difference is not material, as we have no authority to meddle in a
sentence from either. “Jurisdiction lies only in ‘the court which imposed the sentence,’” United
States v. Condit, 621 F.2d 1096, 1097 (10th Cir. 1980) (quoting § 2255(a)); “[a]ny other district
 No. 17-5580 United States v. Nichols Page 19

court lacks jurisdiction,” United States v. Cordova-Ordaz, 637 F. App’x 523, 524 (10th Cir.
2016). See also Northrop v. Quintana, 418 F. App’x 73, 74 n.1 (3d Cir. 2011).

For our purposes, the district court’s time-served sentence ended Nichols’s incarceration
under any sentence for which we had jurisdiction, just as if he had been released from custody.
This continuing federal custody is an insufficient basis upon which to distinguish either Perotti
or any of the district court opinions imposing time-served sentences on inmates such as Nichols.

IV.

The next concern is that every “corrected” sentence will henceforth require a full
“resentencing,” as the majority orders here. The law until now had been that “Section 2255
gives district judges wide berth in choosing the proper scope of post-2255 proceedings.” Ajan v.
United States, 731 F.3d 629, 633 (6th Cir. 2013) (quotation marks and citation omitted); see also
United States v. Jones, 114 F.3d 896, 897 (9th Cir. 1997) (“While [the court] was permitted
[after § 2255] to consider all aspects of the sentence, [it] was not required to do so.”); Stapleton
v. United States, 886 F. Supp. 2d 542, 545 (E.D. Va. 2012) (“[T]he district court is authorized to
conduct a resentencing in awarding relief pursuant to § 2255 but is not required to do so.”). But
here the majority vacated the corrected sentence because it was not a full resentencing sufficient
for a reasonableness review, in that the district court did not revisit the original sentencing
proceedings, attempt to supplement those proceedings, or give any independent explanation.

Recall that the district court thought, albeit mistakenly, that both parties were requesting
a time-served sentence. It is not surprising, then, that the court identified and relied on the only
fact pertinent to that misapprehension: that, given the newly applicable 10-year statutory
maximum, any sentence the court might calculate under any sentencing considerations—past,
present, or future—would be less than Nichols had already served. Nichols, 2016 WL 5921780,
at *4 (“[Nichols] has already served twelve years in prison, a total exceeding the ten-year
custodial maximum applicable to him post-Johnson. As a result, . . . the term of imprisonment
for the instant offense will be reduced to a ‘time served’ sentence.”). Rather than being
unexplained (or inexplicable), the basis for this corrected sentence is self-evident; and rather than
being per se unreasonable, this is the approach district courts are commonly taking in resolving
 No. 17-5580 United States v. Nichols Page 20

these motions based on Johnson/Welch. See, e.g., United States v. Lee, No. 16-cv-70, 2016 WL
4179292, at *2 (D. Hawai’i Aug. 4, 2016) (holding that “a de novo resentencing is unnecessary”
because “an Amended Judgment with a ‘time served’ sentence appropriately ‘corrects’ [Lee]’s
original sentence by removing the ACCA enhancement from the original Judgment”).

To be sure, the district court could proceed on what I earlier described as the second
“legal fiction” and calculate a hypothetical sentence as if Nichols could serve some sentence less
than the 12 years he has already served. And we could review that hypothetical sentence for
reasonableness, even though it is not connected to Nichols’s actual incarceration or the amount
of time he actually served for that particular conviction. And we could pretend that is not merely
advisory. But this strays from the point, which is whether all of this is really necessary.

The majority merges “corrected sentences” and “resentencings” on the premise that full
sentencing proceedings are necessary for a reasonableness review, which we must perform on all
sentences, “without limitation.” When courts have told us how to review sentencings, they have
not differentiated between corrected sentences and full resentencings (or offered a different way
to review corrected sentences), so, the majority reasons, the district court must conduct all
sentencings the same way and, consequently, corrected sentences and full resentencing are de
facto the same thing—both are just resentencings. But § 2255 expressly makes them different
things.

Under § 2255(b), if the district court finds that the inmate is entitled to relief, “the court
shall vacate and set the judgment aside and shall [1] discharge the prisoner or [2] resentence him
or [3] grant a new trial or [4] correct the sentence.” These are four separate alternatives. Ajan,
731 F.3d at 633 (explaining that Ҥ 2255 permits the district court to grant relief in one of four
forms ‘as may appear appropriate’ when a motion is found to be meritorious” (quoting
§ 2255(b)). More to the point, “correcting” and “resentencing” must be different things. See
United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007) (“It is equally clear that by using the
different terms—“correct” and “resentence”—§ 2255 refers to different concepts.”).

Because “correcting sentences” and “resentencings” are different things, it follows that
our appellate review of them, while still for “reasonableness,” is different also, even though
 No. 17-5580 United States v. Nichols Page 21

opinions have not addressed this difference when instructing us on the method of review. A
corrected sentence—particularly from a reasonable original sentence with only a slight
correction—might be found reasonable on review even without a full rendition of the guidelines
calculations or explanation of the factors. To hold otherwise, as the majority does, is to hold that
“correcting” and “resentencing” are the same thing and effectively excise the “correct the
sentence” option from § 2255(b). The majority’s proffered reasons do not justify that.

V.

The next concern is the Eighth Circuit’s conflicting opinion. In United States v. Watkins,
692 F. App’x 307, 308 (8th Cir. 2017), the district court granted Robert Watkins § 2255 relief
based on Johnson/Welch and imposed a corrected sentence of time served—“Watkins had served
more than ten years of a fifteen-year sentence.” On appeal, Watkins argued that “the imposed
sentence [was] illegal . . . because it exceed[ed] the maximum penalty allowed by law for this
conviction; the newly calculated maximum penalty was ten years and Watkins had already
served well past that in prison.” Id. at 309. The Eighth Circuit rejected Watkins’s arguments
about the effect of the time-served sentence on future sentencing or supervised release and held
that “[t]he imposition of a ‘time served’ sentenced was not erroneous.” Id.

Watkins is unreported and its analysis is cursory, almost conclusory, but its holding
directly contradicts the majority’s holding here that a time-served sentence necessarily equates to
a term of months and when that term of months exceeds the statutory maximum, the sentence is
illegal and constitutes per se reversible plain error. Even without endorsing the Eight Circuit’s
opinion, one can see that the majority might have gone too far.

VI.

Finally, I question the merit of the majority’s proffered legal doctrine that holds, in three
parts: (1) that a time-served sentence equates to a term-of-months sentence in the number of
months actually served; (2) that the sentence is illegal when that post hoc term of months
exceeds the newly applicable statutory maximum (or, broadly stated, actions that were taken
pursuant to a statute are ex post facto unlawful when the statute is retroactively unconstitutional);
and (3) the resulting illegal sentence is per se reversible plain error. So, again, as applied here:
 No. 17-5580 United States v. Nichols Page 22

any corrected sentence of time served for an inmate who has already served more than the newly
applicable 10-year maximum is per se reversible plain error. Moreover, the inmate must receive
a full resentencing sufficient for reasonableness review.

Given the breadth of this holding and the vast number of sentences to which it might
henceforth apply, this opinion will doubtless have consequences, foreseeable and unforeseen.
How many corrected sentences will now be per se reversible plain error? How many inmates,
like Nichols, will discover that they have long been unlawfully incarcerated, and what will be the
effect of that discovery? Will they, like Nichols, pursue a time bank or offset? Or will they seek
compensation for that newly discovered unlawful incarceration? What of an inmate who
suffered an injury, committed a crime, or unsuccessfully demanded special accommodations
while so incarcerated—how does the calculus change when it is later declared via post hoc
stipulation that the inmate was only in prison because he was being held unlawfully?

Rather than holding that the corrected sentence of time served necessarily equates to a
term of years equal to the amount of time already served and invoking the legal fictions and
consequences that follow, we might be better served by viewing a “time-served sentence” as
different in kind from a “term of years sentence,” either of which could satisfy the district court’s
discretionary choice of relief under § 2255. That is, of course, an entirely different analysis from
the one the majority has undertaken here, though compatible with the approach taken by the
district courts that have been resolving § 2255 motions based on Johnson/Welch.

Or, upon recognizing that “[a]fter Johnson, the same person engaging in the same
conduct is no longer subject to the Act,” Welch, 136 S. Ct. at 1265 (emphasis added), we could
emphasize the “no longer” to hold that: after Johnson, the inmate is no longer subject to the 15-
year mandatory minimum, though he remained subject to it right up until Johnson (actually, until
he obtains his § 2255 relief based on Johnson/Welch), and only at that point became eligible for
the 10-year statutory maximum. That is, Welch stops the sentence when the district court grants
the § 2255, whereupon the 15-year minimum no longer applies and the 10-year maximum
immediately begins to apply, with the result that Welch’s retroactivity allows the district court to
apply Johnson to correct sentences that were imposed prior to Johnson, but does not empower
the district court to change any sentences that were served prior to the award of the § 2255 relief.
 No. 17-5580 United States v. Nichols Page 23

For example, when the district court granted Nichols’s § 2255 relief in October 2016,
Nichols had already served 147 months of his original 288-month sentence. At that specific
point, the Act no longer applied, meaning Nichols was no longer subject to the 15-year
mandatory minimum and immediately became subject to the 10-year maximum, so the court was
obliged to correct the sentence from that point on, to eliminate the portion remaining that was
due to the Act’s enhancement, which was all of it given that the Act’s enhancement was the basis
for every month above 120. That would result in an actual completed sentence of 147 months,
which was lawful looking backwards, and a prospective sentence of zero months, which was
lawful looking forward. This, of course, is the same as imposing a sentence of time served.

But the majority has taken a different approach. For all of the forgoing reasons, I cannot
join its approach. Therefore, I must respectfully dissent.