United States v. Darius Chaney , 911 F.3d 222 ( 2018 )


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  •                                      PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-6491
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    DARIUS LATRON CHANEY,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western District of North Carolina,
    at Charlotte. Max O. Cogburn, Jr., District Judge. (3:03-cr-00040-MOC-1; 3:12-cv-
    00434-MOC)
    Argued: September 26, 2018                                Decided: December 19, 2018
    Before GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.
    Dismissed by published opinion. Judge Niemeyer wrote the majority opinion, in which
    Judge Agee joined. Chief Judge Gregory wrote a separate opinion, concurring in part,
    dissenting in part, and concurring in the judgment.
    ARGUED: Ann L. Hester, FEDERAL DEFENDERS OF WESTERN NORTH
    CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony J. Enright,
    OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
    Appellee. ON BRIEF: Ross Hall Richardson, Interim Federal Public Defender,
    FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
    Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
    NIEMEYER, Circuit Judge:
    In August 2003, Darius Latron Chaney pleaded guilty pursuant to a plea
    agreement to (1) carjacking, in violation of 
    18 U.S.C. § 2119
    ; (2) use of a firearm in
    furtherance of a crime of violence, in violation of 
    18 U.S.C. § 924
    (c); and (3) possession
    of a firearm by a felon, in violation of 
    18 U.S.C. § 922
    (g)(1). Under the plea agreement,
    the government agreed, among other things, to dismiss two additional counts and to
    recommend that Chaney receive adjustments to his sentence for acceptance of
    responsibility. The plea agreement also provided that Chaney, “in exchange for the
    concessions made by the United States . . . waive[d] the right to contest either the
    conviction or the sentence in any direct appeal or other post-conviction action, including
    any proceeding under 
    28 U.S.C. § 2255
    .” The waiver excepted claims for ineffective
    assistance of counsel and prosecutorial misconduct.
    At sentencing, the district court imposed an aggregate sentence of 272 months’
    imprisonment, consisting of two concurrent sentences of 180 months on the carjacking
    count and 188 months on the § 922(g)(1) count and a statutory mandatory consecutive
    sentence of 84 months on the § 924(c) count. At the time of his sentencing, Chaney had
    five prior North Carolina convictions for breaking and entering, any one of which was
    used to support the element of his § 922(g)(1) conviction that he be a felon. See 
    18 U.S.C. § 922
    (g)(1) (defining a predicate felony offense as a “crime punishable by
    imprisonment for a term exceeding one year”). The prior North Carolina convictions also
    enhanced Chaney’s sentence on that conviction, as well as on his carjacking conviction.
    2
    In 2012, following our decision in United States v. Simmons, 
    649 F.3d 237
     (4th
    Cir. 2011) (en banc), Chaney filed a motion under 
    28 U.S.C. § 2255
    , challenging his
    § 922(g)(1) conviction and sentence, as well as his carjacking sentence. In Simmons, we
    held that North Carolina convictions such as Chaney’s are not “punishable by
    imprisonment for a term exceeding one year” and therefore do not qualify as felonies
    under federal law. See 
    649 F.3d at
    243–49. Accordingly, Chaney claimed that none of
    his prior offenses supported the element of his § 922(g)(1) conviction that he be a felon.
    He also argued that the unlawful § 922(g)(1) conviction affected his sentencing on the
    carjacking count and accordingly requested resentencing.
    In response, the government agreed that Chaney was “actually innocent of the
    § 922(g)(1) conviction because he was not a felon at the time,” and therefore it stated
    that, as to that count, it was waiving its defenses based on the waiver in Chaney’s plea
    agreement and the statute of limitations under 
    28 U.S.C. § 2253
    (f) in order to allow
    vacation of Chaney’s § 922(g)(1) conviction and sentence. But the government limited
    its waiver to the § 922(g)(1) conviction and continued to assert its defenses against
    Chaney’s challenge to his carjacking sentence. It thus opposed Chaney’s request for
    resentencing.
    By order dated January 25, 2013, the district court granted Chaney partial relief,
    vacating his § 922(g)(1) conviction and sentence but declining to resentence him on the
    other two counts. The court entered an amended judgment in Chaney’s criminal case on
    January 31, 2013, reimposing the 180-month sentence for Chaney’s carjacking conviction
    and a consecutive 84-month sentence for his § 924(c) conviction.
    3
    Chaney filed this appeal on March 26, 2013, some 54 days after the court’s
    amended judgment was entered.
    I
    At the outset, the government asserts that Chaney’s notice of appeal filed 54 days
    after the amended judgment was not timely filed, as Federal Rule of Appellate Procedure
    4(b) requires that a defendant in a criminal case file his notice of appeal within 14 days of
    the judgment. Chaney responds that because a § 2255 proceeding is civil in nature, any
    appeal was subject to the 60-day filing period contained in Federal Rule of Appellate
    Procedure 4(a). See Browder v. Dir., Dept. of Corr., 
    434 U.S. 257
    , 269 (1978) (noting
    that “[i]t is well settled that habeas corpus is a civil proceeding”). Thus, if Chaney is
    appealing an order in a civil action, his notice of appeal was timely filed — i.e., within 60
    days of the order. But if he is appealing a new criminal judgment, his notice of appeal
    was not timely filed because it was filed beyond the 14-day appeal period.
    Relying on the analysis in United States v. Hadden, 
    475 F.3d 652
     (4th Cir. 2007),
    we conclude that Chaney was indeed appealing a new criminal judgment and therefore
    that his appeal was not timely filed and must be dismissed, see United States v. Oliver,
    
    878 F.3d 120
    , 123 (4th Cir. 2017).
    In Hadden, we considered whether an amended judgment entered following a
    § 2255 order was part of the habeas proceeding or part of the underlying criminal case to
    determine whether the prisoner there was required to obtain a certificate of appealability
    to appeal. We noted that, in ruling on a § 2255 motion, a district court first determines
    4
    whether the sentence is unlawful on one of the grounds specified in § 2255. See Hadden,
    
    475 F.3d at 661
    .     If the sentence is unlawful because of some legal defect in the
    conviction, the court must vacate the conviction and sentence. 
    Id.
     In the second step of
    the process, the court must grant the defendant an appropriate remedy, including:
    (1) discharging the defendant, (2) granting a new trial, (3) resentencing the defendant, or
    (4) correcting the sentence. 
    Id.
     We thus concluded that when the district court remedies
    an unlawful sentence by resentencing the defendant or correcting the sentence, “an order
    entering the result of such a resentencing or an order correcting the prisoner’s sentence is
    a hybrid order that is both part of the petitioner’s § 2255 proceeding and part of his
    criminal case.” Id. at 664. The order is part of the § 2255 proceeding to the extent that it
    completes that proceeding, but to the extent that the order enters a new criminal sentence,
    it is part of the criminal case. Id. When a prisoner appeals the aspect of the order
    entering the new criminal sentence, by, for example, “challenging the relief granted —
    i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in
    conformity with the Constitution or sentencing guidelines, etc. — he is appealing a new
    criminal sentence.” Id. (emphasis added). As we summarized, “to the extent the order
    vacates the original sentence and enters a new criminal sentence . . . the order is part of
    the prisoner’s criminal case.” Id.
    Of course, when a prisoner appeals a new criminal sentence entered in his criminal
    case, he must comply with the rules applicable to appeals of criminal judgments,
    including Federal Rule of Appellate Procedure 4(b).
    5
    In this case, it is clear that Chaney is challenging the relief that the district court
    granted, arguing that in addition to vacating his § 922(g)(1) conviction and sentence, the
    court’s judgment should have ordered resentencing on the carjacking conviction, rather
    than reimposing the prior sentences. He is thus challenging the relief granted in the
    judgment that the court fashioned. He does not argue that the district court erred in
    concluding that his challenge to his carjacking sentence was time-barred or that it was not
    cognizable on habeas review; he argues instead that regardless of the success of his
    challenge to the carjacking sentence, the court could have resentenced him on the
    carjacking count as part of the remedy it granted for his unlawful § 922(g)(1) conviction.
    Chaney asserts that “the fact that [he] brought an unsuccessful § 2255 claim directly
    challenging the sentence on [the carjacking count] makes no difference in the analysis,”
    because the court failed to fashion an appropriate remedy — a “full resentencing” on the
    carjacking conviction upon the vacatur of the § 922(g)(1) conviction. It is thus apparent
    that Chaney is challenging “matters relating to the propriety of the relief granted” and is
    therefore “appealing a new criminal sentence.” Hadden, 
    475 F.3d at 666
     (emphasis in
    original).
    Accordingly, we dismiss Chaney’s appeal in this case as untimely under Federal
    Rule of Appellate Procedure 4(b).
    II
    In addition to Chaney’s failure to appeal timely, we conclude alternatively that the
    district court did not abuse its discretion in vacating only Chaney’s conviction and
    6
    sentence on the § 922(g)(1) count and not ordering a resentencing on Chaney’s
    carjacking conviction.
    A district court has broad discretion in crafting relief on a § 2255 claim. Section
    2255(b) provides that, after a district court concludes a sentence is unlawful because the
    underlying conviction was unlawful, “the court shall vacate and set the judgment aside
    and shall discharge the prisoner or resentence him or grant a new trial or correct the
    sentence as may appear appropriate.” 
    28 U.S.C. § 2255
    (b). As we have observed, this
    language “confers a ‘broad and flexible’ power to the district courts ‘to fashion the
    appropriate remedy’” for an unlawful conviction. United States v. Hillary, 
    106 F.3d 1170
    , 1171 (4th Cir. 1997) (quoting United States v. Garcia, 
    956 F.2d 41
    , 45 (4th Cir.
    1992)); see also Hadden, 
    475 F.3d at 669
     (“The district court has ‘broad and flexible
    power’ under § 2255 to determine the nature and scope of the remedial proceedings in the
    first instance” (quoting Hillary, 
    106 F.3d at 1171
    )).
    Chaney contends that the most “appropriate” remedy in this case would include a
    resentencing on his carjacking conviction — even though he has no cognizable claim that
    his carjacking sentence was illegal. The carjacking sentence was legally enhanced based
    on his North Carolina convictions, and any relief he could obtain from Simmons was not
    then available. Rather, he argues that the sentence for the offense was affected by his
    unlawful § 922(g)(1) conviction, which the court vacated. He relies on the “sentence-
    package theory,” which, we have recognized, provides that in appropriate circumstances
    resentencing on all counts is a proper remedy under § 2255 for a single unlawful
    conviction. See United States v. Smith, 
    115 F.3d 241
    , 245 (4th Cir. 1997). But we have
    7
    also recognized that “nothing in the sentence-package theory forbids the district courts
    from doing what the text of § 2255 clearly permits: ‘correcting’ a prisoner’s unlawful
    sentence without conducting a formal ‘resentencing.’”          Hadden, 
    475 F.3d at 669
    (brackets omitted) (quoting 
    28 U.S.C. § 2255
    (g)). And indeed, that is precisely what the
    court did in this case. Having concluded that Chaney’s § 922(g)(1) conviction was
    unlawful, the court chose to strike that conviction and sentence but to leave the sentences
    on the other two counts alone, thereby “indicat[ing] that it was satisfied with the resulting
    sentence.” Hadden, 
    475 F.3d at 669
    . This choice cannot be said to have been an abuse
    of discretion.
    Chaney argues that the district court refused to order a “full resentencing” because
    “it failed to recognize its authority” to do so. Specifically, he contends that the district
    court viewed the waiver in Chaney’s plea agreement (and the government’s other
    defenses) as prohibiting it from resentencing Chaney on his carjacking conviction. But
    Chaney does not — and cannot — contend that his plea-agreement waiver was irrelevant
    to the district court’s decision on whether to order resentencing. In addition to facing the
    limitations bar of 
    28 U.S.C. § 2255
    (f), Chaney voluntarily and knowingly agreed to
    “waive the right to contest either the conviction or the sentence in any direct appeal or
    other post-conviction action, including any proceeding under 
    28 U.S.C. § 2255
    .” That
    the government waived its defenses only with respect to Chaney’s § 922(g)(1) conviction
    and continued to oppose resentencing on Chaney’s other counts were matters that the
    court could legitimately consider in exercising its remedial discretion under § 2255.
    8
    While the court, in addressing Chaney’s argument that he was “entitled to be
    resentenced” (emphasis added), rejected that argument based on various applicable
    provisions of law, such an analysis did not indicate that the court considered itself limited
    to granting the relief that it entered.
    In sum, we conclude that the district court did not abuse its discretion in entering
    the amended judgment in the form that it did, and we would, alternatively, affirm the
    district court’s order and amended judgment.
    DISMISSED
    9
    GREGORY, Chief Judge, concurring in part, dissenting in part, and concurring in the
    judgment:
    I agree with the majority’s conclusion in Part I that Chaney is appealing a new
    criminal judgment under this Court’s decision in United States v. Hadden, 
    475 F.3d 652
    (4th Cir. 2007), and that his notice of appeal was not timely filed because it was filed
    after the 14-day appeal period set forth in Federal Rule of Appellate Procedure 4(b). I
    respectfully dissent from Part I, however, to the extent that it dismisses Chaney’s appeal
    on the basis that it was untimely filed under Rule 4(b).          Because that rule is not
    jurisdictional, and given the circumstances presented in this case, I would excuse the
    untimeliness of Chaney’s appeal and reach the merits of his challenge. On the merits, I
    concur in the majority’s alternative holding in Part II that the district court did not abuse
    its discretion in vacating Chaney’s unlawful conviction and sentence on the § 922(g)(1)
    count and entering a corrected sentence without conducting a formal resentencing.
    It is well-settled that the non-statutory time limits in Rule 4(b) “do not affect
    subject-matter jurisdiction.” United States v. Urutyan, 
    564 F.3d 679
    , 685 (4th Cir. 2009);
    see also United States v. Oliver, 
    878 F.3d 120
    , 123 (4th Cir. 2017). We may therefore
    exercise our discretion to hear a criminal appeal not timely filed if we believe the
    circumstances justify our doing so. See Bowles v. Russell, 
    551 U.S. 205
    , 212 (2007)
    (recognizing that “procedural rules adopted by the Court for the orderly transaction of its
    business are not jurisdictional and can be relaxed by the Court in the exercise of its
    discretion” (quoting Schacht v. United States, 
    398 U.S. 58
    , 64 (1970))). In my view, the
    circumstances here counsel in favor of addressing the merits of Chaney’s appeal.
    10
    As an initial matter, Chaney rightly points out that his notice of appeal was not
    “inordinately late.” It was filed 54 days after the district court entered its amended
    judgment—40 days after Rule 4(b)’s criminal-appeal period of 14 days, but within Rule
    4(a)’s civil-appeal period of 60 days. Cf. Oliver, 878 F.3d at 129 (dismissing an appeal
    as untimely filed under Rule 4(b) where the appellant “filed his notice of appeal more
    than three years and eight months after the district court entered the underlying
    judgment”). The Government does not claim to have been prejudiced by this 40-day
    delay. Indeed, the Government elected not to file a motion to dismiss Chaney’s appeal
    and suspend briefing under Local Rule 27(f) on the basis that the appeal notice was not
    timely filed. See United States v. Hyman, 
    884 F.3d 496
    , 498 (4th Cir. 2018) (explaining
    that Local Rule 27(f) “allows a party to move to dismiss (1) on procedural grounds, and
    (2) at any time”). The Government instead waited until filing its response brief to raise
    this issue. Cf. 
    id. at 500
     (granting the Government’s motion to dismiss an untimely
    criminal appeal where the Government “raised the dismissal argument before filing its
    response brief and within that brief”).
    More fundamentally, however, that Chaney’s notice of appeal was timely filed
    under Rule 4(a)’s civil-appeal period reflects his reasonable belief that his appeal was an
    appeal from “the final order in a proceeding under section 2255.”              
    28 U.S.C. § 2253
    (c)(1)(B). The majority and the Government cite no case, nor am I aware of any,
    in which a court has held that Rule 4(b) governs an appeal of an amended judgment
    correcting a prisoner’s sentence after a successful § 2255 challenge.        Although we
    conclude today that this result follows from Hadden, our decision in Hadden held only
    11
    that an appeal of an amended judgment correcting a prisoner’s sentence was part of the
    prisoner’s criminal case—at least to the extent that it challenged “the propriety of the
    relief granted”—such that he need not obtain a certificate of appealability under § 2253 to
    pursue the appeal. See Hadden, 
    475 F.3d at
    664–66. This Court in Hadden had no
    occasion to address the separate question—at issue here—whether the 14-day appeal
    period in Rule 4(b) governs the appeal of any such amended judgment. Chaney’s late-
    filed appeal thus reflects a reasonable misunderstanding of the law stemming from the
    lack of precedent on this question at the time the appeal was taken.
    Chaney’s mistake about the applicable appeal deadline is even more
    understandable given the complex relationship between the civil and criminal aspects of
    habeas proceedings. See United States v. Jones, 
    215 F.3d 467
    , 469 (4th Cir. 2000)
    (stating that “habeas actions are a unique hybrid of civil and criminal”). As the Hadden
    Court itself recognized, determining whether an amended judgment was part of a
    prisoner’s criminal case or his § 2255 proceeding was not an easy or clear-cut task. See
    Hadden, 
    475 F.3d at 660
     (“Our extensive research has discovered no cases directly
    addressing this issue.”); 
    id. at 663
     (“When . . . the district court remedies a § 2255
    petitioner’s unlawful sentence by resentencing him or correcting his sentence, it is less
    clear whether the resentencing or correction itself is part of the prisoner’s § 2255
    proceeding or part of his criminal case.”). After parsing the language of § 2255 and
    reviewing extensively the Supreme Court’s decision in Andrews v. United States, 
    373 U.S. 334
     (1963), this Court ultimately settled on an approach that split the difference.
    We held that “[b]ecause a § 2255 resentencing or correction of the prisoner’s sentence []
    12
    bears traits of both a § 2255 proceeding and a criminal action, . . . an order entering the
    result of such a resentencing or an order correcting the prisoner’s sentence is a hybrid
    order that is both part of the petitioner’s § 2255 proceeding and part of his criminal case.”
    Hadden, 
    475 F.3d at 664
    . “This interpretation,” we acknowledged, was “somewhat
    novel,” although it was consistent with the “hybrid” nature of habeas actions and faithful
    to the policies behind §§ 2253 and 2255. Id. at 664–65; see also Jones, 
    215 F.3d at 469
    .
    Under these circumstances, where it remained unclear at the time of Chaney’s
    appeal whether Rule 4(a) or Rule 4(b) applied to his challenge, and where this inquiry
    ultimately turns on the complex relationship between the civil and criminal aspects of
    habeas actions as recognized in Hadden, I would decline to dismiss this case on the basis
    that Chaney’s appeal was not timely filed and would instead proceed to the merits.
    Turning to the merits, I agree with the majority’s alternative holding in Part II that
    the district court did not abuse its discretion in vacating Chaney’s unlawful conviction
    and sentence on the § 922(g)(1) count and entering a corrected sentence rather than
    resentencing him. See Hadden, 
    475 F.3d at 669
     (explaining that “[t]he district court has
    ‘broad and flexible power’ under § 2255 to determine the nature and scope of the
    remedial proceedings in the first instance” (quoting United States v. Hillary, 
    106 F.3d 1170
    , 1171 (4th Cir. 1997))). Although Chaney contends that the district court failed to
    recognize that it had the authority to resentence him, the record shows that the court
    understood and addressed the parties’ main arguments—including Chaney’s argument
    that he was entitled to be resentenced—before exercising its discretion to correct the
    sentence rather than conduct a resentencing. Cf. Ajan v. United States, 
    731 F.3d 629
    , 633
    13
    (6th Cir. 2013) (vacating and remanding the district court’s amended judgment because
    the record left unclear “whether the district court erroneously believed it had to correct
    [the] sentence in lieu of a resentencing”). For this reason, I discern no abuse of discretion
    and therefore join Part II of the majority opinion.
    14