United States v. Frank Richardson ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0227p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> Nos. 17-2157/2183
v. │
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│
FRANK RICHARDSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 2:10-cr-20397-2—John Corbett O’Meara, District Judge.
Argued: August 1, 2018
Decided and Filed: October 11, 2018
Before: COOK, STRANCH, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit,
Michigan, for Appellant. Shane Cralle, UNITED STATES ATTORNEYS OFFICE, Detroit,
Michigan, for Appellee. ON BRIEF: Michael R. Dezsi, LAW OFFICE OF MICHAEL R.
DEZSI, PLLC, Detroit, Michigan, for Appellant. Shane Cralle, UNITED STATES
ATTORNEYS OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
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NALBANDIAN, Circuit Judge. On his second appeal to this court, Defendant-Appellant
Frank Richardson asks us to overturn his conviction under 18 U.S.C. § 924(c) for aiding and
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abetting the use of a firearm during a crime of violence. On his first appeal, we affirmed his
conviction and sentence in full. But while that appeal was pending, the Supreme Court decided
Johnson v. United States, which held that part of the Armed Career Criminal Act’s definition of a
violent felony was unconstitutionally vague. 135 S. Ct. 2551 (2015). Although Richardson was
not convicted under the Armed Career Criminal Act, he petitioned the Supreme Court for
certiorari, arguing that Johnson nonetheless called part of his conviction into question.
Richardson contends that the residual clause of § 924(c) is unconstitutional because its definition
of the term, crime of violence, is similar to the language at issue in Johnson. The Court granted
Richardson’s petition, vacated our judgment, and remanded the matter to this court. In turn, we
vacated Richardson’s sentence and remanded the case to the district court to determine whether
Richardson’s original sentence should stand given Johnson.
Without determining whether § 924(c)’s residual clause is unconstitutionally vague, we
affirm Richardson’s conviction under § 924(c)’s force clause, which supplies a separate
definition of crime of violence. We also conclude that our remand limited the district court’s
inquiry to Johnson-related issues and that the district court properly refrained from considering
Richardson’s other arguments about alleged deficiencies in the indictment and the trial court’s
jury instructions—arguments that he could have raised in his first appeal but did not. Finally, we
hold that Richardson’s sentence is procedurally and substantively reasonable.
For the reasons stated below, we AFFIRM the district court’s decision to reinstate
Richardson’s original sentence.
I.
Frank Richardson participated in a series of armed robberies of electronics stores in and
around Detroit, Michigan, between February and May 2010. At least one robber used a gun
during each robbery. Although Richardson planned each heist and served as a lookout, he never
entered a store while a robbery occurred. United States v. Richardson, 793 F.3d 612, 618 (6th
Cir. 2015). Law enforcement apprehended Richardson shortly after the commission of the fifth
and final robbery. Id. at 620.
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In June 2013, a jury convicted Richardson on five counts of aiding and abetting Hobbs
Act robbery, 18 U.S.C. § 1951, five counts of aiding and abetting the use of a firearm during and
in relation to a crime of violence, 18 U.S.C. § 924(c), and one count of being a felon in
possession of a firearm, 18 U.S.C. § 922(g). The district court sentenced Richardson to 1,494
months in prison, and we affirmed Richardson’s conviction and sentence on appeal. Richardson,
793 F.3d at 612.
While Richardson’s appeal was pending, the Supreme Court decided Johnson. That
decision held that the definition of the term, violent felony, in the Armed Career Criminal Act’s
residual clause, is unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Richardson then
petitioned the Court for a writ of certiorari. The Court granted that petition, vacated our
judgment, and remanded the case “for further consideration in light of Johnson v. United States.”
Richardson v. United States, 136 S. Ct. 1157 (2016). In turn, we issued an order vacating
Richardson’s sentence and remanding the case to the district court “for reconsideration of
Richardson’s sentence in light of Johnson v. United States.” United States v. Richardson, Nos.
13-2655, 13-2656, slip op. at 2 (6th Cir. Aug. 29, 2016).
In September 2017, the district court held a resentencing hearing and reinstated
Richardson’s original sentence. Richardson appeals that decision.
II.
A.
To start, we must interpret our order, which remanded the case to the district court for
reconsideration of Richardson’s sentence after Johnson. We interpret a remand de novo. United
States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997). Under our mandate rule, the scope of the
remand issued by the court of appeals binds the district court. United States v. Campbell,
168 F.3d 263, 265 (6th Cir. 1999). And a district court is “without jurisdiction to modify or
change the mandate.” Tapco Prod. Co. v. Van Mark Prod. Corp., 466 F.2d 109, 110 (6th Cir.
1972).
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Remands can be limited or general. A limited remand “explicitly outline[s] the issues to
be addressed by the district court and create[s] a narrow framework within which the district
court must operate.” Campbell, 168 F.3d at 265. A general remand “permits the district court to
redo the entire sentencing process, including considering new evidence and issues.” United
States v. McFalls, 675 F.3d 599, 604 (6th Cir. 2012). Richardson contends that we issued a
general remand, which would allow us to consider his allegations of error from the original trial
as well as his Johnson-related arguments. The government, by contrast, asserts that our remand
was limited and thus precludes the court from considering any issue unrelated to Johnson and its
effect on Richardson’s sentence.
A remand is presumptively general. United States v. Woodside, 895 F.3d 894, 899 (6th
Cir. 2018). To overcome that presumption, we must “convey clearly our intent to limit the scope
of the district court’s review with language that is in effect, unmistakable.” Id. (internal
alterations, citations, and quotations omitted). A court need not use magic words to create a
limited remand, nor must it include limiting language in the relevant order. Rather, language
narrowing the scope of the remand “may be found ‘anywhere in an opinion or order, including a
designated paragraph or section, or certain key identifiable language.’” Id. at 900 (quoting
United States v. Orlando, 363 F.3d 596, 601 (6th Cir. 2004)). In addition to the limiting
language itself, the context of that language is also important. Indeed, we have repeatedly held
that a court must also rely on the broader context of the opinion to determine whether the remand
is limited. See, e.g., United States v. Patterson, 878 F.3d 215, 217 (6th Cir. 2017) (explaining
that the court must look to the “broader context of the opinion” when interpreting the remand);
Campbell, 168 F.3d at 267–68 (“The key is to consider the specific language used in the context
of the entire opinion or order.”).
Our order’s plain language shows that we remanded the matter for the limited purpose of
determining whether Richardson’s sentence is constitutional after Johnson. The order’s
penultimate sentence explains the basis for the remand: “Because any Johnson-based challenges
to his sentence that Richardson may have are entirely novel, it is appropriate to allow the district
court to consider those challenges in the first instance.” Richardson, slip op. at 2 (emphasis
added). The order concludes, “Richardson’s sentence is hereby VACATED, and we REMAND
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to the district court for reconsideration of Richardson’s sentence in light of Johnson v. United
States, 135 S. Ct. 2551 (2015).” Id. The order does not open the door to any argument about
Richardson’s sentence. Rather, it narrows the district court’s review to Johnson-related
arguments that Richardson necessarily could not have raised at trial or on his first appeal to this
court.
And the context bolsters the conclusion that we issued a limited remand. The order
acknowledges that Richardson raised several issues on his first appeal, stating, “we issued an
opinion and judgment rejecting those arguments and affirming Richardson’s conviction and
sentence in full.” Richardson, slip op. at 1. The only intervening event between our 2015
decision affirming Richardson’s conviction and sentence and our 2016 order was the Supreme
Court’s decision in Johnson. But Johnson does not affect any of the alleged errors related to
Richardson’s indictment and the trial court’s jury instructions. Thus, the order does not identify
any of Richardson’s other alleged errors as issues for consideration on remand.
Because this court’s order operated as a limited remand, it narrowed the district court’s
focus to determining whether Richardson’s sentence is constitutional after Johnson. The order
foreclosed the district court from considering any other issue.
B.
Richardson advances three arguments related to his conviction and sentence under
§ 924(c) that are unrelated to the Supreme Court’s decision in Johnson. He argues that the trial
court (1) erred in instructing the jury on the necessary elements to convict under § 924(c);
(2) erroneously instructed the jury about the necessary predicate offenses underlying the § 924(c)
counts; and (3) added two years to his sentence under § 924(c) for having “brandished” a
firearm, even though he was charged with the lesser “use-and-carry” offense. These errors are
not properly before this court.
First, as noted above, our order limited the district court’s inquiry to determining whether
§ 924(c) is constitutional under Johnson. When we issue a limited remand, the district court is
“bound to the scope of [that] remand.” Campbell, 168 F.3d at 265. Indeed, a district court “is
without authority to expand its inquiry beyond the matters forming the basis of the appellate
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court’s remand.” Id. Because Richardson’s allegations of error fall outside the scope of our
limited remand, the district court appropriately declined to consider those arguments.
Richardson faces a second insurmountable hurdle wholly apart from the scope of the
remand: he forfeited those arguments by not raising them on his first appeal to this court. We
recently addressed a similar situation in Patterson, in which the defendant appealed his criminal
conviction to this court. 878 F.3d at 217. The government subsequently cross-appealed, alleging
that the district court erred by not treating the defendant’s prior state court convictions as crimes
of violence under the Armed Career Criminal Act. Id. We affirmed the conviction but issued a
limited remand ordering the district court to resentence the defendant under the Armed Career
Criminal Act. Id. But on remand, the defendant sought to relitigate his classification as an
armed career criminal and raised new arguments that he never presented on his first appeal. Id.
The district court declined to consider those arguments, and we affirmed that decision.
We held first, like here, that the remand was limited. But we also noted that the defendant
“face[d] another problem, separate and apart from the scope of our remand.” Id. at 218. The
defendant failed to raise those arguments on his first appeal. We explained: “‘where an issue
was ripe for review at the time of an initial appeal but was nonetheless foregone, the mandate
rule generally prohibits the district court from reopening the issue on remand.’” Id. (quoting
United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003)). Because the defendant never
appealed the issue on his first trip to the Sixth Circuit, his argument was “doubly out of
bounds . . . and that reality by itself resolves this appeal.” Id. (internal quotations and citation
omitted).
As a last resort, Richardson asks this court to consider his arguments under the guise of
an ineffective assistance of counsel claim. But again, because Richardson’s ineffective
assistance of counsel argument falls outside the scope of our limited remand, he cannot raise the
argument on this appeal. See United States v. Knight, 50 F. App’x 565, 566 n.1 (3d Cir. 2002)
(explaining that the defendant’s ineffective assistance of counsel argument was an attempt “to
‘load up’ this remand with issues that are totally outside of the parameters set forth in the
remand order”).
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In addition, courts almost always address ineffective assistance of counsel arguments
when the defendant brings a post-conviction motion to vacate under 28 U.S.C. § 2255, rather
than on direct appeal. United States v. Franklin, 415 F.3d 537, 555 (6th Cir. 2005). There is
good reason to adhere to that practice here: we need a sufficiently developed record to review
Richardson’s ineffective assistance of counsel claim. Id. Indeed, a finding of prejudice “is a
prerequisite to a claim for ineffective assistance of counsel, and appellate courts are not
equipped to resolve factual issues.” United States v. Brown, 332 F.3d 363, 368–69 (6th Cir.
2003). Without a record, it is difficult for this court to determine whether Richardson’s trial
counsel was, in fact, ineffective. United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005).
For these reasons, we decline to reach Richardson’s alleged errors through his ineffective
assistance of counsel claim.
C.
Next, we consider the central issue properly before this court: whether the Supreme
Court’s decision in Johnson has any effect on Richardson’s sentence. The Armed Career
Criminal Act—the statute at issue in Johnson—creates no distinct criminal offense. Rather, the
Act imposes a more severe sentence on a defendant convicted of being a felon in possession of a
firearm—but only if the defendant has three or more prior convictions for a violent felony.
18 U.S.C. § 924(e)(1). The Act provides several definitions of the term, violent felony,
including a catchall definition within the residual clause at § 924(e)(2)(B). Any crime
punishable by imprisonment for a term exceeding one year that “otherwise involves conduct that
presents a serious potential risk of physical injury to another” is a violent felony under the
residual clause. 18 U.S.C. § 924(e)(2)(B)(ii). In Johnson, the Supreme Court held that this
residual clause was unconstitutionally vague. 135 S. Ct. at 2563.
Richardson, however, did not receive a sentence enhancement under the Armed Career
Criminal Act and does not challenge his conviction on one count of being a felon in possession
of a firearm. Instead, his appeal concerns his conviction under § 924(c). That statute creates a
separate offense for using or possessing a firearm in connection with a crime of violence. See
Dean v. United States, 137 S. Ct. 1170, 1174 (2017) (“Congress has made it a separate offense to
use or possess a firearm in connection with a violent or drug trafficking crime.”). Like the
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Armed Career Criminal Act, § 924(c) includes a residual clause defining the term, crime of
violence. The residual clause covers any crime punishable by imprisonment for a term of more
than one year that “involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).
Although Richardson acknowledges that the residual clause in § 924(c) is not identical to the
residual clause in the Armed Career Criminal Act, he argues that the differences between those
two clauses are minor and that the Supreme Court’s reasoning in Johnson applies to § 924(c).
After the Supreme Court decided Johnson, this court rejected the argument that
§ 924(c)’s residual clause is unconstitutionally vague. In United States v. Taylor, we held that
§ 924(c)’s residual clause “is considerably narrower than the statute invalidated by the Court in
Johnson . . . .” 814 F.3d 340, 375 (6th Cir. 2016). That published—and thus binding—decision
forecloses Richardson’s argument that the residual clause is unconstitutional. But more recent
decisions from this court and the Supreme Court, however, suggest that Taylor stands on
uncertain ground.
In Shuti v. Lynch, we held that the Immigration and Nationality Act’s definition of the
term, crime of violence, is unconstitutionally vague. 828 F.3d 440 (6th Cir. 2016). That
definition, codified at 18 U.S.C. § 16(b), is identical to the definition of crime of violence in
§ 924(c)’s residual clause, which we upheld in Taylor. Nevertheless, we distinguished the two
definitions and held that our decision in Shuti was consistent with Taylor. As we explained,
Ҥ 924(c) is a criminal offense that requires an ultimate determination of guilt beyond a
reasonable doubt—by a jury, in the same proceeding. This makes all the difference.” Id. at 449.
More recently, the Supreme Court, consistent with Shuti, concluded that § 16(b) was
unconstitutionally vague, stating that “just like ACCA’s residual clause, § 16(b) ‘produces more
unpredictability and arbitrariness than the Due Process Clause tolerates.’” Sessions v. Dimaya,
138 S. Ct. 1204, 1223 (2018) (quoting Johnson, 135 S. Ct. at 2558).
Richardson contends that Dimaya questions the distinction that Shuti drew between
§ 924(c) and § 16(b). Indeed, the Supreme Court stated that § 16(b) is a criminal statute and thus
declined to apply a “more permissive form of the void-for-vagueness doctrine” that is normally
applied to non-criminal statutes. Id. at 1213. And the Court stated that § 16(b)’s residual clause
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could survive only if “it is materially clearer than its now-invalidated ACCA counterpart.” Id.
Thus, Richardson argues that Dimaya compels this court to hold that § 924(c)’s residual clause is
also unconstitutionally vague. At least three circuit courts have already come to that conclusion.
United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018); United States v. Davis, __F.3d __,
2018 WL 4268432, at *3 (5th Cir. Sept. 7, 2018); United States v. Eshetu, 898 F.3d 36, 37–38
(D.C. Cir. 2018). But see United States v. Barrett, __ F.3d __, 2018 WL 4288566, at *9–14 (2d
Cir. Sept. 10, 2018).
Nevertheless, we leave the continuing viability of Taylor to another day. In addition to
the residual clause, § 924(c) supplies a separate definition of the term, crime of violence, in the
force clause. 18 U.S.C. § 924(c)(3)(A). The force clause defines a crime of violence as a felony
that “has as an element the use, attempted use, or threatened use of physical force against the
person or property of another.” Id. Any offense that constitutes a crime of violence under either
the residual clause or the force clause is sufficient to sustain a conviction under § 924(c).
18 U.S.C. § 924(c)(1)(A), (c)(3).
Here, the government argues that Richardson’s conduct satisfies the force clause.
Richardson, by contrast, contends that aiding and abetting Hobbs Act robbery does not satisfy
the force clause, meaning that his conviction is sustainable only under the residual clause.
Although we have not addressed whether aiding and abetting Hobbs Act robbery is a crime of
violence under the force clause, we have held that the principal offense of Hobbs Act robbery is
a crime of violence under the force clause. United States v. Gooch, 850 F.3d 285, 292 (6th Cir.
2017). In Gooch, we explained that the Hobbs Act is a divisible statute that creates two separate
offenses, Hobbs Act extortion and Hobbs Act robbery. Id. at 292. And we concluded the latter
offense is categorically a crime of violence under § 924(c). Id.
Although Richardson acknowledges our holding in Gooch, he argues that his conviction
for aiding and abetting Hobbs Act robbery is distinct from a conviction for the principal offense
and is not crime of violence under the force clause. We disagree. There is no distinction
between aiding and abetting the commission of a crime and committing the principal offense.
Aiding and abetting is simply an alternative theory of liability; it is “not a distinct substantive
crime.” United States v. McGee, 529 F.3d 691, 695–96 (6th Cir. 2008) (citation omitted). Thus,
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under 18 U.S.C. § 2, an aider and abettor is punishable as a principal. United States v. Davis,
306 F.3d 398, 409 (6th Cir. 2002); see also United States v. Maselli, 534 F.2d 1197, 1200 (6th
Cir. 1976) (“[O]ne who causes another to commit an unlawful act is as guilty of the substantive
offense as the one who actually commits the act.”). For purposes of sustaining a conviction
under § 924(c), it makes no difference whether Richardson was an aider and abettor or a
principal.
Moreover, the First, Tenth, and Eleventh Circuits have held that aiding and abetting
Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). See United States v. Garcia-
Ortiz, __F.3d __, 2018 WL 4403947, at *1, 5 (1st Cir. Sept. 17, 2018); United States v. Deiter,
890 F.3d 1203, 1215–16 (10th Cir. 2018); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). In
Colon, the court explained why aiding and abetting Hobbs Act robbery satisfies the force clause:
Because an aider and abettor is responsible for the acts of the principal as a matter
of law, an aider and abettor of a Hobbs Act robbery necessarily commits all the
elements of a principal Hobbs Act robbery. And because the substantive offense
of Hobbs Act robbery “has as an element the use, attempted use, or threatened use
of physical force against the person or property of another,” . . . then an aider and
abettor of a Hobbs Act robbery necessarily commits a crime that “has as an
element the use, attempted use, or threatened use of physical force against the
person or property of another.”
Colon, 826 F.3d at 1305 (citation omitted).
We agree with the First, Tenth, and Eleventh Circuits and conclude that Richardson’s
conviction for aiding and abetting Hobbs Act robbery satisfies the force clause. Thus, we affirm
his conviction under § 924(c).
D.
Richardson alleges that the district court’s decision to reinstate his original sentence is
both procedurally and substantively unreasonable. Richardson does not distinguish the court’s
alleged procedural errors from its substantive errors. Rather, he levies a general objection that
the district court failed to articulate its reasoning for rejecting his arguments and reinstating his
original sentence. Richardson also alleges specific errors with the sentence, including that the
district court (1) overlooked his argument about the calculation of his base offense level and
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criminal history scores; (2) ignored his post-sentencing conduct, which it was permitted to
consider under Pepper v. United States, 562 U.S. 476 (2011); and (3) failed to consider
reducing his sentence on the non-§ 924(c) counts to adjust for the mandatory consecutive
sentences on the § 924(c) counts, as it was permitted to do under Dean v. United States, 137 S.
Ct. 1170 (2017).
A sentence is procedurally reasonable when the district court “listened to each argument,
considered the supporting evidence, was fully aware of the defendant’s circumstances, and took
them into account in sentencing him.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir.
2008) (en banc) (internal quotations omitted). And in the context of a resentencing, the record
must reflect both “(1) that the district court considered a defendant’s nonfrivolous argument for
a particular sentence, and (2) why that argument was rejected.” United States v. Moore, 654 F.
App’x 705, 710–11 (6th Cir. 2016). That is not to say that the district court must state with
particularity the grounds for rejecting each argument. A court’s “consideration of the argument
and its reasons for rejecting the same need not, however, always be explicit or specific; the
record might be sufficient for us to extract this information implicitly and contextually.” Id. at
711.
Here, the district court ultimately decided to reinstate Richardson’s original sentence.
The court did not issue a written decision on remand but explained at the hearing that it “has
reviewed the very extensive briefs, which is persuasive in many ways, which both the
government and the defendant has filed in support of their positions.” (R. 86, Hr’g Tr. at
PageID #364.) The court subsequently heard argument from Richardson’s counsel and the
government’s counsel, the latter of which reminded the district court that the limited remand
narrowed the court’s inquiry to Johnson-related arguments. And then the court resentenced
Richardson.
Richardson accuses the district court of failing to address his objections to his base
offense level and criminal history scores, as calculated in his revised presentence report. The
district court did not err by declining to consider these objections. First, our limited remand
gave the court jurisdiction to consider one issue: whether Richardson’s sentence was valid after
Johnson. Our remand did not open the door to new arguments about sentencing issues
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unrelated to Johnson. Because Richardson’s arguments about his base offense level and
criminal history scores do not relate to Johnson, the district court properly declined to consider
those arguments.
Separately, we note that the base offense level and criminal history scores in the
presentence report before the district court at resentencing are identical to the scores from
Richardson’s October 2013 presentence report, which the district court used to impose the
original sentence. Richardson did not object to the calculation of his base offense level and
criminal history scores in his October 2013 sentencing memorandum to the district court, nor
did he raise the issue on his first appeal to this court. Accordingly, Richardson has forfeited this
argument.
Finally, Richardson alleges that the district court committed substantive error by failing
to adhere to the Supreme Court’s decisions in Pepper and Dean. First, we consider
Richardson’s argument that the district court did not consider his post-sentencing rehabilitation,
as it was allowed to do under Pepper. Here again, our limited remand foreclosed the district
court from considering non-Johnson issues, such as Richardson’s post-sentencing conduct.
Indeed, the Supreme Court in Pepper explained that it did not intend “to preclude courts of
appeals from issuing limited remand orders, in appropriate cases, that may render evidence of
postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand
proceeding.” Pepper, 562 U.S. at 505 n.17. This court, accordingly, has held that Pepper-
related arguments are appropriate only when the remand is general. See United States v.
Williams, 522 F. App’x 278, 279 (6th Cir. 2013) (“[Pepper] does not . . . empower a district
court to exceed the scope of a limited remand.”); United States v. Gapinski, 422 F. App’x 513,
520 (6th Cir. 2011) (“Pepper held that a general remand leaves the district court free to sentence
de novo.”). Thus, the district court did not err in declining to consider Richardson’s post-
sentencing rehabilitation.
Next, we consider Richardson’s argument that the district court failed to address his
request for a reduced sentence for his non-924(c) convictions, as Dean permits. This argument
suffers from the same flaw as Richardson’s Pepper argument: because we issued a limited
remand, the district court could not consider issues unrelated to Johnson. Dean concerns the
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district court’s discretion when sentencing a defendant convicted of § 924(c) and a predicate
crime of violence. A conviction under § 924(c) carries a mandatory sentence, which runs
consecutively to the sentence for the predicate crime of violence. Dean, 137 S. Ct. at 1174–75
(discussing 18 U.S.C. § 924(c)(1)(D)(ii)). In Dean, the Supreme Court held that the court may
consider the length of the defendant’s mandatory sentence under § 924(c) when calculating the
proper sentence for the predicate offense. Id. at 1176–77. But Dean does not allow the court to
modify a defendant’s sentence under § 924(c) and therefore does not apply here. Our limited
remand did not open the door to new arguments about Richardson’s sentence for his Hobbs Act
robbery and felon-in-possession convictions. Thus, the district court did not err by not
considering Richardson’s argument under Dean.
E.
Lastly, we reject Richardson’s final argument that the district court deprived him of his
right to allocute fully at the post-remand sentencing hearing. We review an allegation of the
complete denial of a right to allocute de novo. United States v. Wolfe, 71 F.3d 611, 614 (6th
Cir. 1995). But when the appellant alleges a limitation on his right to allocute, as Richardson
has done here, we review for plain error. United States v. Carter, 355 F.3d 920, 926 n.3 (6th
Cir. 2004).
At the close of the sentencing hearing, the district court allowed Richardson to speak
from the podium and address the court. Richardson immediately contested the underlying merits
of his conviction:
The government attorney said the sentence that was imposed the first time was
appropriate. Well, you got a guy fixin’ to get out next year who went in and
committed these robberies. I didn’t commit one robbery. No witness, no civilian
witness identified me. Even my co-defendant said I never committed a robbery.
They committed a robbery, but he fixin’ to get out next year.
(R. 86, Hr’g Tr. at PageID #373.) At this point, the district court interrupted Richardson to
explain that the jury had already determined his guilt, but it gave Richardson another opportunity
to speak. Yet again, Richardson returned to the merits of his conviction, noting that “district
courts have said that conspiracy to commit Hobbs Act robbery is not a crime of violence.” (Id.)
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The district court again interrupted Richardson and ended his allocution. Richardson’s counsel
raised no objections to this termination.
There is no constitutional right to allocution. Pasquarille v. United States, 130 F.3d
1220, 1223 (6th Cir. 1997). Instead, that right derives from Federal Rule of Criminal Procedure
32, which requires the court to “address the defendant personally in order to permit the defendant
to speak or present any information to mitigate the sentence” before the court imposes the
sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii). But the district court is not obligated to allow the
defendant to allocute when the court is resentencing the defendant under a limited remand.
United States v. Jeross, 521 F.3d 562, 585 (6th Cir. 2008) (“Rule 32 requires allocution only
before a court imposes the original sentence on a defendant, and does not require allocution at
resentencing.”)
Because the district court allowed Richardson to allocute when it did not have to, it did
not err in ultimately terminating Richardson’s allocution after he twice sought to contest the
merits of his underlying conviction. Thus, we conclude that Richardson’s sentence was
procedurally and substantively sound.
***
We AFFIRM the district court’s decision to reinstate Richardson’s original 1,494-month
sentence.