United States v. Ricky Lee Groves ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4826
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY LEE GROVES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:94-cr-00097-F-1)
Submitted: October 29, 2014 Decided: November 7, 2014
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Seth
M. Wood, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Ricky Lee Groves was found
guilty of operating a continuing criminal enterprise (“CCE”), 21
U.S.C. § 848 (2012) (Count Two), using a firearm during a drug
trafficking crime, 18 U.S.C. § 924(c)(1) (2012) (Count Three);
and trading food stamps for cocaine base, 7 U.S.C. § 2024(b)
(2012) (Counts 61, 68-69, 71, 73). He was sentenced in 1995 to
life imprisonment on Count Two, sixty months’ imprisonment on
Counts 61, 68, 69, 71, 73 to run concurrently, and a consecutive
sixty-month sentence on Count Three, for a total of life plus
sixty months in prison. On appeal, this Court affirmed Groves’
convictions and sentence. United States v. Groves, 1996 WL
346519 (4th Cir. June 25, 1996) (No. 95-5172).
In July 2011, Groves filed the underlying 28 U.S.C.
§ 2241 (2012) petition seeking to set aside his § 924(c)
conviction (Count Three) based on Watson v. United States, 552
U.S. 74 (2007) (holding that a person does not use a firearm
under 18 U.S.C. § 924(c)(1)(A) when he receives it in trade for
drugs). The Government conceded that the conviction was infirm
but moved to dismiss the petition on other grounds. The court
granted Groves’ motion “to the extent that [he] seeks to vacate
his conviction and sentence in Count Three.” On October 7,
2013, the court entered an amended judgment to reflect that
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Count Three had been vacated pursuant to § 2241. The order
further read “No other changes made by the court.”
On appeal, Groves contends that the district court,
without acknowledging its authority to order a resentencing
hearing on the remaining convictions, erroneously entered an
amended judgment reinstating a sentence that was imposed under a
now unconstitutional mandatory sentencing scheme. We affirm.
The district court has broad and flexible power to
fashion an appropriate remedy in granting relief on collateral
review. United States v. Hillary, 106 F.3d 1170, 1171 (4th Cir.
1997). In United States v. Hadden, 475 F.3d 652, 661 (4th Cir.
2007), we explained that Hillary held only that the district
court is authorized to conduct a resentencing in awarding relief
under § 2255, not that the district court is required, in
resolving every § 2255 motion to conduct a resentencing.
“First, the district court must determine whether the prisoner’s
sentence is unlawful on one of the specified grounds.” Id. If
the district court determines that the sentence is unlawful
(e.g., it violates a federal law), the court “shall vacate and
set . . . aside” the sentence. Id. As we observed, “the end
result of a successful § 2255 proceeding must be the vacatur of
the prisoner’s unlawful sentence . . . and one of the following:
(1) the prisoner’s release, (2) the grant of a future new trial
to the prisoner, (3) or a new sentence, be it imposed by (a) a
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resentencing or (b) a corrected sentence.” Id. A district
court need not actually vacate the original sentence if the
judgment has the “practical effect” of vacating the original
sentence. Id. at 661 n.8. In addition, the “new” sentence may
be the same as the original sentence. Id. at 661 n.9.
Here, in awarding collateral relief under § 2241, the
district court did not alter the sentencing terms imposed at
Groves’ original sentencing hearing. Rather, the court entered
an amended judgment reflecting vacatur of Groves’ conviction
under Count Three. The district court’s order thus was entered
for the purpose of correcting the judgment, rather than imposing
a sentence following a resentencing. We conclude a sentencing
hearing was not required under these circumstances. See Hadden,
475 F.3d at 667 (“To ‘correct’ means to ‘make or set right.’
Merriam Webster’s Collegiate Dictionary 280 (11th ed. 2004).
This is precisely what the district court did here.”).
We reject Groves’ argument that the district court did
not understand its authority to order a new sentencing hearing.
While the order is silent in this regard, the record makes clear
that Groves repeatedly requested resentencing, noting that this
district court had done so in a previous case. The order
further indicates that the district court reviewed Groves’
supplemental filings in which he vigorously argued for a
resentencing hearing. Moreover, given the ease with which the
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court could excise the consecutive § 924(c) conviction from the
remainder of the sentence, it is apparent the court did not see
the need for a full resentencing. But see United States v.
Smith, 115 F.3d 241, 245 n.4 (4th Cir. 1997); Hillary, 106 F.3d
at 1171.
Last, Groves argues that a full resentencing was
required in light of intervening developments since his original
sentencing, namely, United States v. Booker, 543 U.S. 220 (2005)
(holding that judge-found sentence enhancements mandatorily
imposed under the Guidelines that result in a sentence greater
than that authorized by the jury verdict or facts admitted by
the defendant violate the Sixth Amendment’s guarantee of the
right to trial by jury), Pepper v. United States, 131 S. Ct.
1229 (2011) (holding that a district court at resentencing may
consider evidence of a defendant’s post-sentencing
rehabilitation in support of a downward variance), and Alleyne
v. United States, 133 S. Ct. 2151 (2013) (holding that any fact
that increases a statutory mandatory minimum sentence is element
of offense that must be admitted by defendant or found by jury
beyond a reasonable doubt).
The record disclosed no non-speculative grounds on
which to conclude that the district court would have given
Groves a lower sentence had it been applying a discretionary
Guidelines regime. See Hadden, 475 F.3d at 670. In this case,
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the district court clearly stated that, regardless of any issue
with the Guidelines range, it was going to sentence Groves to
life imprisonment. For this reason, we reject Groves’
constitutional claims under Booker and Alleyne. See United
States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006) (holding
that this court must reverse unless the Government can
demonstrate beyond a reasonable doubt that the court would have
imposed the same sentence in the absence of the constitutional
error). Last, because we conclude the district court did not
abuse its discretion in declining to hold a resentencing
hearing, the district court did not err in failing to consider
post-offense rehabilitation under Pepper.
Accordingly, we affirm the amended criminal judgment.
We deny Groves' motion to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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