United States v. Franklin Lamar Kellogg , 489 F. App'x 344 ( 2012 )

Case: 12-10696 Date Filed: 09/06/2012 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10696
Non-Argument Calendar
________________________
D.C. Docket No. 5:06-cr-00017-LSC-PWG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKLIN LAMAR KELLOGG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 6, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Franklin Lamar Kellogg appeals his 960-month sentence, imposed by the
Case: 12-10696 Date Filed: 09/06/2012 Page: 2 of 8
district court at resentencing after the district court granted his 28 U.S.C. § 2255motion to vacate. After a thorough review of the record, we affirm.
I.
Following a jury trial in 2007, Kellogg was convicted of armed bank
robbery, in violation of 18 U.S.C. § 2113 (Count 1); using a firearm during and in
relation to a crime of violence, in violation 18 U.S.C. § 924(c)(1)(A)(iii) (Count
2); and possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (Count 3). Count 1 carried a statutory maximum of 25 years’ (300
months) imprisonment. See 18 U.S.C. § 2113(d). Count 2 carried a mandatory
minimum sentence of 25 years’ imprisonment, which would run consecutively to
any other sentence imposed. See 18 U.S.C. § 924(c)(1)(C)(i), (c)(1)(D)(ii). Count
3 carried a mandatory minimum of 15 years’ imprisonment and a statutory
maximum of life imprisonment. See 18 U.S.C.§ 924(e)(1). The district court
sentenced Kellogg to the maximum 300 months on Count 1 and the high end of
the guideline range of 660 months on Count 3 to run concurrently, and the
mandatory-minimum 300 months on Count 2 to run consecutive to the other
sentences, for a total sentence of 960 months’ imprisonment.1
1
Kellogg qualified as a career offender, which, when added to the statutory maximum
sentences of Counts 1 and 3, generated a guideline range of 660 months’ to life imprisonment
under U.S.S.G. § 4B1.1(c)(2) & comment. (n.3(c)(ii)) (2007).
2
Case: 12-10696 Date Filed: 09/06/2012 Page: 3 of 8
Kellogg’s convictions and sentences were affirmed on direct appeal. United
States v. Kellogg, No. 07-15807, 2009 WL 323063 (11th Cir. Feb. 10, 2009).
Kellogg then filed a motion to vacate his convictions. Relevant to this appeal, he
argued that his conviction on Count 3 violated double jeopardy because he had
been convicted in Tennessee of the same conduct. The district court granted the
motion in part, vacated Kellogg’s conviction for Count 3, and ordered
resentencing without this count.
At resentencing, the district court sentenced Kellogg to 300 months for
Count 1 and increased his sentence on Count 2 from 300 months to a consecutive
660 months. In imposing the sentence, the district court stated, “I had a plan,
overall plan of how much time the defendant would serve based upon his overall
criminal conduct.” The court explained that the lengthy sentence was necessary
given the nature and circumstances of the offenses and the history and
characteristics of the defendant, as well as the need to deter criminal behavior and
protect the public. Kellogg now appeals, arguing that the district court did not
have jurisdiction to reconstruct the original total sentence and resentence him on
convictions that he did not challenge in his § 2255 motion without an order by this
3
Case: 12-10696 Date Filed: 09/06/2012 Page: 4 of 8
Court reversing and remanding for such a resentencing.2
Whether the district court had jurisdiction to resentence Kellogg involves a
question of law that we review de novo. United States v. Watkins, 147 F.3d 1294,
1296 (11th Cir. 1998).
In United States v. Rosen, a pre-Sentencing Guidelines case, we held that
when a sentence on multiple counts was disrupted because it incorporated an
illegal sentence, it was appropriate for the entire case to be remanded for
resentencing. 764 F.3d 763, 767 (11th Cir. 1985). But we limited our holding to
situations where a defendant challenged all of his convictions on direct appeal. Id.
at 766.
After the Sentencing Guidelines went into effect, we decided United States
v. Mixon, 115 F.3d 900, 903 (11th Cir. 1997), which addressed a successful
collateral challenge to a § 924(c) conviction. There, we held that the district court
may resentence the defendant on related but unchallenged drug count convictions
after vacating one of several convictions. Id. at 902. We noted that, at the time of
sentencing, the district court could not impose both the mandatory sentence for the
§ 924(c) violation and also apply a two-level enhancement under U.S.S.G.
2
We note that Kellogg has abandoned any challenge to the procedural or substantive
reasonableness of his sentence by failing to raise the issue in his brief. United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
4
Case: 12-10696 Date Filed: 09/06/2012 Page: 5 of 8
§ 2D1.1(b)(1) for possession of firearms during the offense. Mixon, 115 F.3d at
902. The relationship between § 924(c) and § 2D1.1(b)(1) was an “either/or
relationship” at sentencing. Id. (quotation omitted). We concluded that the
Guidelines contemplated the interdependence of a § 924(c) conviction and
underlying drug offenses, and although the § 924(c) conviction had been vacated,
this interdependence of the multiple counts allowed the district court to adjust the
defendant’s sentences on the unchallenged counts. Id. at 903.
In United States v. Oliver, 148 F.3d 1274 (11th Cir. 1998), the appellants
raised the same arguments as the defendant in Mixon. Id. at 1275. In concluding
that their claims were foreclosed, we noted that our decision in Rosen did not alter
the result because Rosen was a pre-Guidelines case, and the language cited by the
defendants was dicta. Id. We reasoned that, because Rosen was a pre-Guidelines
case, the court could not have considered the unique relationship between § 924(c)
and § 2D1.1(b)(1). Id.
Similarly, in United States v. Watkins, 147 F.3d 1294 (11th Cir. 1998), we
faced the same question as in Mixon and Oliver, but with a twist. See id. at 1296.
The defendant in Watkins was an armed career criminal, which meant that
U.S.S.G. § 2D1.1(b)(1) did not apply to enhance his offense level. Id. Thus, we
had to decide whether the unavailability of the § 2D1.1(b)(1) enhancement at the
5
Case: 12-10696 Date Filed: 09/06/2012 Page: 6 of 8
defendant’s original sentencing was an integral component of the district court’s
jurisdiction to resentence on unchallenged counts following a § 2255 proceeding
that vacated a § 924(c) conviction. Id. at 1296-97. The defendant argued that the
district court did not have jurisdiction to resentence him on the two counts he did
not collaterally attack. Id. at 1297. We again distinguished Rosen as a
pre-Guidelines case and we noted that “the district court viewed the defendant’s
sentence as a ‘package’ and took into account ‘the nature of the crime, certain
characteristics of the criminal, and the interdependence of the individual counts.’”
Id. (quoting United States v. Binford, 108 F.3d 723, 728 (7th Cir. 1997)). We held
that the “interdependence of the drug and firearms offenses and the sentencing
package doctrine provided the district court with the jurisdiction to resentence [the
defendant] following his successful collateral attack on the § 924(c) offense.” Id.
at 1297. Thus, the availability of the U.S.S.G. § 2D1.1(b)(1) enhancement was not
necessary to the court’s jurisdiction to resentence on unchallenged counts. Id.
Post-Booker,3 we have continued with a “holistic approach” to resentencing,
“treating a criminal sentence as a package of sanctions that may be fully revisited
upon resentencing.” United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir.
2010) (internal quotation marks omitted) (emphasis in original). “Under this
3
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
6
Case: 12-10696 Date Filed: 09/06/2012 Page: 7 of 8
holistic approach, when a criminal sentence is vacated, it becomes void in its
entirety; the sentence—including any enhancements—has been wholly nullified
and the slate wiped clean.” United States v. Stinson, 97 F.3d 466, 469 (11th Cir.
1996) (internal quotation marks omitted). Thus, “the district court is free to
reconstruct the sentence utilizing any of the sentence components.” Id.In addition, the Supreme Court has said that appellate courts may continue
to use this “sentencing package” approach. Greenlaw v. United States, 554 U.S.
237, 253 (2008). It noted that such “sentencing package cases” typically involve
multi-count indictments and a successful attack by a defendant on some but not all
counts of conviction. Id. The appeals court, in such instances, “may vacate the
entire sentence on all counts so that, on remand, the trial court can reconfigure the
sentencing plan to assure that it remains adequate to satisfy the sentencing factors
in 18 U.S.C. § 3553(a).” Id. The Supreme Court further recognized the possibility
that, upon remand, trial courts may impose sentences on the remaining counts that
were longer than the sentences originally imposed on those counts, but yielding an
aggregate sentence that was no longer than the original aggregate sentence. Id.Thus, although the defendant ultimately may gain nothing from his limited success
on appeal, he also loses nothing. Id. at 254.
In Kellogg’s case, Counts 1 and 2 were interdependent with count 3, and the
7
Case: 12-10696 Date Filed: 09/06/2012 Page: 8 of 8
record indicates that the district court viewed the initial sentence as a “package.”
Thus, the district court had jurisdiction to resentence Kellogg on Counts 1 and 2,
and the district court’s “overall plan” to resentence Kellogg to 960 months’
imprisonment was within its power. Mixon, 115 F.3d at 902-03; Watkins, 147
F.3d at 1297; see also Greenlaw, 554 U.S. at 253; Martinez, 606 F.3d at 1304.
The fact that resentencing resulted from a successful collateral attack rather than a
remand from this court is not relevant. See, e.g., Mixon, 115 F.3d at 901, 903; see
also Binford, 108 F.3d at 729. Accordingly, we conclude that the district court
had jurisdiction to resentence Kellogg on Counts 1 and 2, and we affirm the
sentence imposed.
AFFIRMED.
8