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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12141
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00255-ELR-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LLOYD JOYNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 17, 2021)
Before WILSON, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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This is Lloyd Joyner’s second trip to this Court. The first time, we affirmed
Joyner’s convictions on all counts, but we vacated Joyner’s 480-month sentence
and remanded to the district court to correct a one-level error in his offense level
calculation and to sentence him accordingly. See United States v. Joyner,
899 F.3d
1199, 1208 (11th Cir. 2018). Joyner now appeals his 303-month sentence,
imposed on remand.
The district court originally sentenced Joyner based on his convictions on
eight counts. Six of those counts (Counts 1–4, 6, and 8) were for Hobbs Act
robbery, in violation of
18 U.S.C. § 1951(a); the remaining two counts (Counts 5
and 7) were for brandishing a firearm in furtherance of a crime of violence, in
violation of
18 U.S.C. § 924(c)(1)(A)(ii). The Sentencing Guidelines range for the
robbery convictions, based on a total (erroneous) offense level of 32 and a criminal
history category of I, was 121–151 months’ imprisonment. The firearm offenses in
Counts 5 and 7 carried mandatory minimum sentences of 84 months and 300
months respectively. The district court varied downward on the robbery counts,
and otherwise imposed the statutory minimums, resulting in (1) 96 months’
imprisonment as to Counts 1–4, 6, and 8, to run concurrently to each other; (2) 84
months’ imprisonment as to Count 5, to run consecutively to the robbery counts;
and (3) 300 months’ imprisonment as to Count 7, to run consecutively to all other
counts. His total sentence was thus 480 months.
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For the correct offense level of 31, the Guidelines range for the robbery
convictions would have been 108–135 months’ imprisonment. Though the district
court’s downward variance had produced a sentence below that range, we did not
hold the Guidelines error harmless. Joyner, 899 F.3d at 1208. We explained that
“when a defendant is sentenced under an incorrect Guidelines range . . . the error
itself can, and most often will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Id. (alteration adopted) (quoting Molina-
Martinez v. United States,
136 S. Ct. 1338, 1345 (2016)). That rule, combined
with the government’s concession that Joyner should be resentenced, led us to
vacate Joyner’s sentence and remand for resentencing.
Id.
Fortuitously for Joyner, while he awaited resentencing, Congress passed the
First Step Act. See First Step Act of 2018, Pub. L. No. 115-391, § 403,
132 Stat.
5194, 5221–22. In relevant part, the Act amended
18 U.S.C. § 924(c).
Id. Before
the enactment of the First Step Act, § 924(c)(1)(C) mandated a minimum 25-year
(300-month) term of imprisonment for a “second or subsequent conviction under
this subsection.” Id. The First Step Act, however, amended § 924(c)(1)(C) to
authorize the heightened mandatory minimum only for a “violation of this
subsection that occurs after a prior conviction under this subsection has become
final”—not for multiple convictions arising out of the same indictment. Id. And
the Act clarified that the amendment “shall apply to any offense that was
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committed before the date of enactment of this Act, if a sentence for the offense
has not been imposed as of such date of enactment.” Id.
On resentencing, Joyner argued that the post-First-Step-Act version of
§ 924(c) applied to him because his original sentence had been vacated, and so no
sentence had yet been imposed for his offenses. The district court agreed. It thus
sentenced Joyner to 168 months’ imprisonment on the § 924(c) convictions—84
months for each count. With respect to the robbery convictions, however, the
district court did not vary downward this time, as it had previously in sentencing
Joyner to 96 months on those counts. It instead sentenced Joyner to 135 months, a
sentence at the top of 108–135 months Guidelines range. Joyner’s total sentence
was thus 303 months’ imprisonment. In this appeal, Joyner claims that the district
court abused its discretion by “adding thirty-nine (39) months of prison onto the
Hobbs Act Robbery Counts,” and thus “shift[ing] the most harsh and punitive
aspect of the sentence from the firearms offenses to the Hobbs robbery counts.” 1
We disagree. A general vacatur of a sentence by default allows for
resentencing de novo. United States v. Martinez,
606 F.3d 1303, 1304 (11th Cir.
2010). The district court is free to reconstruct the “sentencing package” to ensure
1
We review the reasonableness of a sentence under a deferential abuse-of-discretion standard.
Gall v. United States,
552 U.S. 38, 41 (2007). The abuse-of-discretion standard “allows a range
of choice for the district court, so long as that choice does not constitute a clear error of
judgment.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation
marks omitted).
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that the overall sentence remains consistent with the Guidelines, the
18 U.S.C.
§ 3553(a) factors, and the court’s view concerning the proper sentence in light of
the totality of the circumstances. United States v. Fowler,
749 F.3d 1010, 1015–16
(11th Cir. 2014). Here, the district court did just that. The court acknowledged the
§ 3553(a) factors and discussed (1) Joyner’s lack of respect for the law, (2) the
nature and circumstances of the offenses, (3) Joyner’s criminal history and
conduct, and (4) the need for Joyner’s total sentence to provide sufficient
punishment and adequate deterrence. The court also discussed Joyner’s
codefendant’s sentence, which implicated the need to avoid sentencing disparities
among similar defendants. See
18 U.S.C. § 3553(a)(6). It thus sentenced him to a
total term of 303 months.
To the extent that Joyner argues that the district court was limited on remand
to correcting the one-offense-level defect in his Guidelines range calculation, he is
incorrect. As already explained, following a general vacatur, a district court is free
to reconstruct the entire “sentencing package.” Fowler, 749 F.3d at 1015–16. In
this Circuit, vacatur of a sentence “wipes the slate clean” and requires the district
court to conduct “a resentencing as if no initial sentencing ever occurred.” United
States v. Burke,
863 F.3d 1355, 1359 (11th Cir. 2017).
In any event, Joyner is precluded from arguing that the district court was
limited to correcting the one-offense-level defect in his Guidelines range
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calculation by the doctrine of invited error. “It is a cardinal rule of appellate
review that a party may not challenge as error a ruling or other trial proceeding
invited by that party.” United States v. Love,
449 F.3d 1154, 1157 (11th Cir. 2006)
(quotation marks omitted). To obtain the benefit of the First Step Act, Joyner
argued before the district court that the court should resentence him from scratch.
Thus, even if Joyner were correct that de novo resentencing was error, he cannot
now “cry foul on appeal,” having “invite[d] the trial court to commit error.”
United States v. Brannan,
562 F.3d 1300, 1306 (11th Cir. 2009).
AFFIRMED.
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