United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
criminal matter is before the Court to expand on its oral
rulings at the defendant's resentencing hearing on
Tuesday, November 15, 2016. During that hearing, the Court
overruled the defendant's objection to the Presentence
Investigation Report [Doc. 100] and held that the defendant
is a career offender as defined in U.S.S.G. § 4B1.1. The
Court issues this opinion to provide further basis for that
April 23, 2013, the defendant appeared before the Honorable
Amul R. Thapar, United States District Judge, and pleaded
guilty, without a plea agreement, to robbing a pharmacy, in
violation of 18 U.S.C. §§ 2118(a) and 2 (count
one); using, carrying, and brandishing a firearm during and
in relation to that robbery, in violation of 18 U.S.C.
§§ 924(c)(1) and 2 (count two); and possessing a
firearm as a felon, in violation of 18 U.S.C. §
922(g)(1) (count three) [Doc. 79 pp. 27].
Presentence Investigation Report (“PSR”)
classified the defendant as a career offender, concluding
that he had two qualifying convictions under U.S.S.G. §
4B1.1(a) [Doc. 74 p. 1]. Under § 4B1.1(a), a defendant
may qualify as a career offender if he has previously
sustained two felony convictions “of either a crime of
violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a). One of the two qualifying convictions was
for felony common law robbery under North Carolina law, which
the PSR concluded was a crime of violence [Id.]. The
defendant objected to this classification, arguing that his
North Carolina robbery conviction is not a crime of violence
[Id.]. Judge Thapar overruled this objection finding
that the North Carolina common law robbery conviction
qualifies as a crime of violence under the residual clause of
the career offender guideline [Id. at 4-5]. As such,
Judge Thapar determined that the defendant was properly
classified as a career offender and sentenced him to 262
months' imprisonment [Doc. 74 p. 5; Doc. 75].
defendant appealed his career-offender classification, and
the Court of Appeals for the Sixth Circuit affirmed the
defendant's sentence. United States v. Smith,
582 F. App'x 590, 598 (6th Cir. 2014). The Sixth Circuit
concluded that North Carolina common law robbery qualifies as
a crime of violence under § 4B1.2(a)'s residual
clause and declined to address whether the offense otherwise
qualifies as a crime of violence under § 4B1.2(a)'s
enumerated-offense or use-of-force clauses. Id.
months later, the Supreme Court held “that imposing an
increased sentence under the residual clause of the Armed
Career Criminal Act [(“ACCA”), 18 U.S.C. §
924(e), ] violates the Constitution's guarantee of due
process.” Johnson v. United States, 135 S.Ct.
2551, 2563 (2015). The Supreme Court subsequently granted
certiorari in this case, vacated the Sixth Circuit's
judgment, and remanded the case for further consideration in
light of Johnson. Smith v. United States,
135 S.Ct. 2930 (2015).
13, 2016, the Sixth Circuit determined that the
“rationale of Johnson applies equally to the
residual clause” of the career offender guideline.
United States v. Pawlak, 822 F.3d 902, 911 (6th Cir.
2016). As such, the court held that the residual clause in
the guidelines is also invalid as “unconstitutionally
result, in this matter, the Sixth Circuit determined that the
defendant “must be resentenced because the district
court based his § 4B1.1 enhancement upon §
4B1.2(a)(2)'s unconstitutional residual clause”
[Doc. 89 p. 3]. The Sixth Circuit vacated the judgment and
remanded this case “for further consideration in light
of Mitchell and Pawlak” [Id.
United States Probation Office prepared a revised PSR in this
matter, again classifying the defendant as a career offender
under § 4B1.1 [Doc. 98 ¶ 39]. The defendant
objected to this classification [Doc. 100], and the
government responded in opposition to the objection [Doc.
initial matter, the Court addresses the resentencing
procedure. Pursuant to 18 U.S.C. § 3742(g), when a case
is remanded for sentencing, a district court shall resentence
a defendant in accordance with § 3553 and with such
instructions as may have been given by the court of appeals,
except that the court must apply the version of the
guidelines “that were in effect on the date of the
previous sentencing of the defendant prior to the appeal,
together with any amendments thereto by any act of Congress
that was in effect on such date.” 18 U.S.C. §
3742(g)(1). Pursuant to the mandate rule, “a district
court is bound to the scope of the remand issued by the court
of appeals, ” which may be limited or general pursuant
to 28 U.S.C. § 2106. United States v. Campbell,
168 F.3d 263, 265 (6th Cir. 1999); accord United States
v. Moore, 131 F.3d 595, 597 (6th Cir. 1997). On a
general remand, the district court may resentence a defendant
de novo. Moore, 131 F.3d at 597. On a
limited remand, however, a district court's authority is
constrained “to the issue or issues remanded.”
Id. at 598.
constitute a limited remand, the appellate court “must
convey clearly [its] intent to limit the scope of the
district court's review.” Campbell, 168
F.3d at 267. A limited remand must “explicitly outline
the issues to be addressed by the district court and create a
narrow framework within which the district court must
operate.” Id. at 265. The limiting language
defining the scope of an appellate court's mandate may be
found “anywhere in an opinion or order, including a
designated paragraph or section, or certain key identifiable
language[, ]” and “should be, in effect,
unmistakable.” Id. at 267-68; see also
United States v. O'Dell, 320 F.3d 674, 678 (6th Cir.
2003) (finding a limited remand where the appellate court
stated, “we VACATE the judgment of the sentence entered
by [the] district court and REMAND for re-sentencing without
application of the safety valve”); United States v.
Santonelli, 128 F.3d 1233, 1237 (6th Cir. 1997) (finding
a limited remand when the Sixth Circuit stated
“[b]ecause the sentence may have been affected by this
incorrect information, we vacate [the defendant's]
sentence and remand the case to the district court for
resentencing”); Moore, 131 F.3d at 598-600
(comparing limited remands where the court of appeals sets
forth limiting language for resentencing and general remands
where the court of appeals simply remands for resentencing).
Absent limitation, a “remand order is presumptively a
general one.” Moore, 131 F.3d at 598.
party addressed this issue in their briefings, but the
government argued at the resentencing hearing that this case
is before the Court on a general remand because the Sixth
Circuit remanded the case for “resentencing.” In
circumstances where the Sixth Circuit remands a case for
“resentencing, ” that instruction does not
necessarily prescribe de novo review. See, e.g.,
United States v. Miles, F. App'x 148, 150 (6th Cir.
2007) (finding that remands “for re-sentencings in
light of Booker” are limited remands);
O'Dell, 320 F.3d at 678 (finding a limited
remand the Sixth Circuit remanded the case “for
re-sentencing without application of the safety
valve”); Santonelli, 128 F.3d at 1237 (finding
a limited remand where the Sixth Circuit remanded the case
for resentencing “[b]ecause the sentence may have been
affected by  incorrect information”).
Sixth Circuit's opinion provides: “Smith must be
resentenced because the district court based his § 4B1.1
enhancement upon § 4B1.2(a)(2)'s unconstitutional
residual clause. For this reason, we VACATE the judgment of
the district court and REMAND this case to the district court
for further consideration in light of Mitchell and
Pawlak” [Doc. 89 pp. 3-4]. Furthermore, the
Sixth Circuit opinion addressed only the career offender
issue [See generally Doc. 89].
addition, the Court notes that in situations where an appeals
court has addressed the same case several times, as is here,
“issuing limited remands on sentencing cases, leaving
open for resolution only the issue found to be in error on
the initial sentencing, ” is an avenue that avoids
“wast[ing] judicial resources.”
Santonelli, 128 F.3d at 1238. As the Sixth Circuit
has already seen this case on two occasions, a ...