SIXTH CIRCUIT FINDS CORRECTED SENTENCE ILLEGAL AND UNREASONABLE

SIXTH CIRCUIT FINDS CORRECTED SENTENCE ILLEGAL AND UNREASONABLE

United States vs. Nichols, No. 17-5580

Nichols was convicted for felon in possession of a firearm in 2004. While the maximum for that offense is ten years imprisonment, he was enhanced under the Armed Career Criminal Act and received a sentence of 288 months.

While in prison, he was convicted and sentenced for conspiracy to distribute heroin and possession of heroin by an inmate. He was sentenced to 151 months to be served consecutively.

After the Supreme Court decisions in Johnson and Welch, Nichols filed a 2255 motion challenging his ACCA enhancement. The district court agreed that he should be resentenced, but instead of conducting a resentencing hearing, the court issued a memorandum opinion and order. By the time the court did this, he had already served 12 years in prison, which is two years more than the statutory maximum. The guideline range for the felon in possession was 51-63 months. The district court imposed a sentence of “time served” which ended-up being approximately 12 years. Nichols appealed claiming that his sentence exceeds the statutory maximum and the sentence is unreasonable. The reason this matters is because if he had received a sentence lower than 10 years, then the clock would start on his latest charges since both sentences were to run consecutively.

The Sixth Circuit said that the sentence was illegal and as such reversible by plain error. The district court had no authority to impose a sentence of 12 years imprisonment. The statutory maximum applied at that time because the ACCA used to enhance his sentence was already vacated. While the district court cited standard procedure in “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),” the court also reasoned that the cases that the district court cited also involved prisoners who were eligible for immediate release following the correction of their sentences to “time served.” Nichols is not eligible for immediate release under that reasoning because he has another sentence to serve.

The government argued that there was no error committed by the court “because “[a] district court cannot actually turn back the clock to reduce the number of months a defendant has already spent in custody,” but the court disagreed, noting that “[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.”

Further, Nichols argued that his sentence was unreasonable. First, the court ruled that corrected sentences are subject to reasonable review. The court affirmed. The court can review sentences for reasonableness and the statute does not override the reasonableness standard.

Reasonableness requires that the sentence be procedurally and substantively reasonable.

“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.” “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.’”

The Sixth Circuit reviewed the order of the court in granting the § 2255 motion. That motion stated the following:

“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.”

The court noted that the order contains no analysis in support of the corrected sentence, no reference to the guidelines range and no acknowledgement that the length of sentence departs from the guidelines range. This sentence is unreasonable because the appellate court cannot determine whether the district court properly used the guidelines as “the starting point and the initial benchmark” for the corrected sentence.” The sentence is procedurally unreasonable because the district court “failed to adequately explain the chosen sentence —including an explanation for any deviation from the Guidelines range.” “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. 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,” …the district court was obligated to supplement the original explanation.” Because the order in this case has no reference to Nichols’ original sentencing proceedings and no explanation for the corrected sentence the sentence cannot survive reasonable review and must be vacated.

The Sixth Circuit vacated and remanded Nichols’ sentence. No. 17-5580