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United States v. Smith

United States District Court, E.D. Tennessee

November 21, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ARTHUR CHARLES SMITH, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         This 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 determination.

         I. Background

         On 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].

         The 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].

         The 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.

         Nine 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).

         On May 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 vague.” Id.

         As a 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. at 3-4].

         The 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. 104].

         II. Resentencing Procedure

         As an 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.[1] 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.

         To 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.

         Neither 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”).

         Here, 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].

         In 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 ...


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