USCA11 Case: 21-13920 Document: 42-1 Date Filed: 12/06/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13920
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE T. PAIGE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:02-cr-00508-WFJ-TGW-1
____________________
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2 Opinion of the Court 21-13920
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No. 21-13958
Non-Argument Calendar
____________________
ANDRE T. PAIGE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-01437-WFJ-TGW
____________________
Before ROSENBAUM, JILL PRYOR, and MARCUS, Circuit Judges.
PER CURIAM:
Andre Paige appeals the district court’s modification of his
sentence, which now consists of a total sentence of life
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21-13920 Opinion of the Court 3
imprisonment plus a consecutive 720 months’ imprisonment. The
district court imposed this new sentence after it granted Paige’s
28
U.S.C. § 2255 motion and vacated a conviction that carried a con-
current life sentence under United States v. Davis,
139 S. Ct. 2319
(2019). The district court then granted a certificate of appealability
(“COA”) as to whether it abused its discretion in failing to hold a
resentencing hearing before imposing its modified sentence. After
thorough review, we affirm.
We review our own appellate jurisdiction de novo. United
States v. Cody,
998 F.3d 912, 914 (11th Cir. 2021), cert. denied,
142
S. Ct. 1419 (2022). “Unless a circuit justice or judge issues a certifi-
cate of appealability, an appeal may not be taken to the court of
appeals from . . . the final order in a proceeding under section
2255.”
28 U.S.C. § 2253(c)(1)(B). A COA may issue “only if the
applicant has made a substantial showing of the denial of a consti-
tutional right.”
Id. § 2253(c)(2). That is, a COA “must specify what
constitutional issue jurists of reason would find debatable,” even
when a prisoner seeks to appeal a procedural error. Spencer v.
United States,
773 F.3d 1132, 1138 (11th Cir. 2014) (en banc). The
failure to specify a constitutional issue will result in vacatur of the
COA.
Id.
We review a district court’s choice of § 2255 remedy for
abuse of discretion. United States v. Brown,
879 F.3d 1231, 1235
(11th Cir. 2018). A district court abuses its discretion if its choice of
remedy is contrary to law.
Id.
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4 Opinion of the Court 21-13920
When a district court grants a motion to vacate under
§ 2255, it must first vacate and set aside the judgment and then
choose from four distinct remedies: (1) discharge the prisoner;
(2) resentence the prisoner; (3) grant the prisoner a new trial; or
(4) correct the prisoner’s sentence. Id. “The district court has
broad discretion to choose between these remedies.” United States
v. Thomason,
940 F.3d 1166, 1171 (11th Cir. 2019). However, “the
Due Process Clause places a limit on that discretion.”
Id.
Notably, when a district court vacates a single count in a
multi-count conviction, it has discretion to determine if it needs to
conduct a full resentencing to ensure that the sentence complies
with
18 U.S.C. § 3553(a).
Id. at 1172. A district court does not need
to conduct a full resentencing when correcting an error does not
change the guideline range or make the sentence more onerous.
Id. A resentencing may be necessary, though, “when a court must
exercise its discretion in modifying a sentence in ways it was not
called upon to do at the initial sentencing,” like when a district
court vacates a mandatory-minimum sentence and is then able to
consider the sentencing factors for the first time.
Id. at 1173 (quo-
tations omitted). “[W]hen a defendant’s sentence has been set
aside on appeal and his case remanded for resentencing, a district
court may consider evidence of a defendant’s rehabilitation since
his prior sentencing . . . .” Pepper v. United States,
562 U.S. 476,
490 (2011).
In United States v. Fowler, we described the “sentencing
package doctrine” as a common judicial practice used when courts
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21-13920 Opinion of the Court 5
sentence multiple, interrelated and interconnected counts of con-
viction.
749 F.3d 1010, 1015 (11th Cir. 2014). We explained that
the underlying rationale of this practice is that “when a conviction
on one or more of the component counts is vacated for good, the
district court should be free to reconstruct the sentencing package
. . . to ensure that the overall sentence remains consistent with the
guidelines.”
Id. We noted that a “criminal sentence in a multi-
count case is, by its nature, a package of sanctions that the district
court utilizes to effectuate its sentencing intent consistent with the
Sentencing Guidelines.”
Id. at 1015 (quotations omitted). We
added that a district court may revise a sentence after direct appeal
or a § 2255 proceeding so that the overall sentencing of the remain-
ing counts is consistent with the § 3553(a) factors. Id. at 1017. Im-
portantly, the district court in Fowler had made clear at resentenc-
ing -- after it granted a § 2255 motion -- that it viewed Fowler’s sen-
tence as a “package sentence” where Fowler was initially sentenced
to life on Count 1, which was vacated, and sentenced to a consec-
utive 10-year term on Count 2. 749 F.3d at 1017–18. We said that
“[a]s the architect of a sentence structure that has been partially
dismantled by a conviction being vacated, the district court can re-
design and rebuild it to achieve the original purpose and conform
to code.” Id. at 1018.
The First Step Act of 2018 amended
18 U.S.C. § 924(c)(1)(A)
to state that the enhanced statutory penalties for subsequent
§ 924(c) convictions apply only to a “violation of this subsection
that occurs after a prior conviction under this subsection has
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6 Opinion of the Court 21-13920
become final.” First Step Act of 2018,
Pub. L. No. 115-391, § 403(a),
132 Stat. 5194, 5221–22 (2018). The Supreme Court has clarified
that sentencing courts may consider the mandatory consecutive
sentences under § 924(c) when calculating other sentences. Dean
v. United States,
137 S. Ct. 1170, 1176–77 (2017).
For starters, we have jurisdiction to determine Paige’s ap-
peal on the merits. The crux of his appeal is grounded in whether
his due process rights were violated by the district court’s choice of
remedy, and we’ve indicated that the Due Process Clause limits the
district court’s discretion in choosing the appropriate § 2255 rem-
edy. Thomason, 940 F.3d at 1171; Spencer, 773 F.3d at 1138. Sim-
ilarly, reasonable jurists could debate whether choosing a particu-
lar remedy over another after relief from a § 2255 motion -- like
here, where the district court chose to modify a sentence instead of
holding a resentencing hearing to consider additional evidence of
post-sentencing rehabilitation and intervening statutory develop-
ments -- denies a defendant due process. Spencer, 773 F.3d at 1138.
Therefore, the COA in this case is proper, and we have the author-
ity to address Paige’s claims on the merits. Id.;
28 U.S.C. §
2253(c)(2).
Nevertheless, the district court did not abuse its discretion
by modifying Paige’s sentence without holding a new sentencing
hearing. Brown, 879 F.3d at 1235. As the record reflects, after
granting Paige’s § 2255 motion and vacating one of his convictions,
the district court reimposed a total sentence of life imprisonment
(concurrently, on two counts) plus 60 years’ imprisonment -- which
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21-13920 Opinion of the Court 7
was the same sentence as previously imposed, minus another con-
current life sentence for the one vacated count. We’ve made it
clear that a district court has broad discretion to choose between
different remedies after it grants a § 2255 motion and to choose
whether a resentencing hearing is appropriate when one count is
vacated in a multi-count conviction. Thomason, 940 F.3d at 1171–
72. In this case, the district court explained that a resentencing
hearing was not necessary because Paige’s guideline range re-
mained unchanged and the sentence was not more onerous, and
Paige does not argue that there has been any material change in the
guidelines that would have affected him. Id. at 1173. As Paige con-
cedes, even under the new guidelines that he would have liked to
raise at a new sentencing hearing, his sentence would continue to
be a life sentence (concurrent on two counts) plus an additional 27
years (instead of an additional 60 years), leaving his life sentence
intact.
18 U.S.C. § 924(c)(1)(A).
Further, although there have been changes in the statutory
scheme with the passage of the First Step Act, the district court was
not compelled to modify Paige’s sentence in a different manner
than it did at the initial sentencing; indeed, in imposing Paige’s new
sentence, the district court still was not in a position to vacate a
mandatory-minimum sentence and then consider the sentencing
factors for the first time. Thomason, 940 F.3d at 1173. The most
the district court could have done would have been to decrease his
sentences on the other concurrent terms or reduce the consecutive
penalties on his § 924(c) counts to the new mandatory minimums,
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8 Opinion of the Court 21-13920
which, again, would not decrease his total sentence below life im-
prisonment. Id.
It’s also worth noting that Paige’s case is factually and legally
distinguishable from his codefendant’s appeal in Fowler because
Paige had two remaining concurring life sentences plus mandatory
consecutive terms of imprisonment, even after he obtained § 2255
relief. Fowler, for his part, only had a single ten-year sentence of
consecutive imprisonment remaining. Fowler, 749 F.3d at 1017–
18. So although the district court could have treated Paige’s sen-
tence as a package because it involved multiple counts and rebuilt
it upon resentencing, it was not required to do so, nor did it abuse
its discretion by declining to do so. Id. at 1018.
Accordingly, the district court did not abuse its discretion by
choosing to modify Paige’s sentence instead of holding a resentenc-
ing hearing. Thomason, 940 F.3d at 1172. Moreover, because
Paige was not entitled to a resentencing hearing in general, the dis-
trict court did not abuse its discretion by failing to address any new
arguments Paige would have liked to raise about, for example, his
post-sentencing rehabilitation or the evolving legal landscape sur-
rounding the sentencing of young adults at resentencing. Accord-
ingly, we affirm.
AFFIRMED.
