United States v. Ricky Douglas Haynes, Jr.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 12-12689 & 12-13244
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D.C. Docket Nos. 6:07-cr-00054-JA-GJK-1 & 6:07-cr-00073-JA-KRS-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
RICKY DOUGLAS HAYNES, JR.,
Defendant–Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_______________________
(August 22, 2014)
Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.
PRYOR, Circuit Judge:
This appeal requires us to decide whether a federal prisoner who directly
appeals a resentencing may raise new arguments unrelated to the errors corrected
at the resentencing. Ricky Haynes, a federal prisoner, filed a motion to vacate his
sentence, 28 U.S.C. § 2255, which the district court granted in part because his
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sentence for possession of a firearm and ammunition as a convicted felon, 18
U.S.C. § 922(g), exceeded the 10-year statutory maximum, id. § 924(a)(2). Now
that he has been resentenced on that count, Haynes wants more. He asks us to
revisit an argument that he failed to raise in his direct appeal and unsuccessfully
raised in his motion to vacate. But during the resentencing proceedings, Haynes
invited the resentencing court to limit the scope of the resentencing to the counts
affected by the order granting in part the motion to vacate. We will not now vacate
that new sentence for errors beyond the scope of that limited resentencing.
I. BACKGROUND
Haynes is currently serving three concurrent, 322-month sentences for five
counts of conviction: three counts of possessing with intent to distribute crack
cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), one count of possessing a firearm and
ammunition as a convicted felon, 18 U.S.C. § 922(g), and one count of using and
carrying a firearm during and in relation to, or possessing a firearm in furtherance
of, a drug trafficking offense, id. § 924(c).
A federal grand jury initially indicted Haynes for one count of possessing
with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), one count
of possessing a firearm and ammunition by a convicted felon, 18 U.S.C. §§ 922(g),
and one count of using and carrying a firearm, or possessing a firearm in
furtherance of, a drug trafficking offense, id. § 924(c)(1)(A). Nearly a month later,
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a federal grand jury indicted him for two counts of possession with intent to
distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B). The same district judge
oversaw both prosecutions, but the prosecutions were never consolidated.
Haynes pleaded guilty to all five counts in one hearing, and the district court
sentenced him on all counts at another hearing. In the earlier filed case, case no.
6:07-cr-00054, the district court imposed a 322-month sentence for each of the
three counts, to be served concurrently. Likewise, in the later filed case, case no.
6:07-cr-00073, the district court imposed two 322-month sentences, one for each
count, to be served concurrently with the sentence in case no. 6:07-cr-00054.
The district court sentenced Haynes as a career offender under the advisory
United States Sentencing Guidelines. See United States Sentencing Guidelines
Manual § 4B1.1 (Nov. 2006). Haynes had three qualifying prior convictions: (1)
resisting arrest with violence in violation of Florida law; (2) carrying a concealed
firearm in violation of Florida law; and (3) possession with intent to distribute
cocaine base in violation of Florida law. Haynes failed to object to the career-
offender enhancement at sentencing, but he did object to a statement in the
presentence investigation report that he qualified for an enhanced sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). The district court overruled
that objection.
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Haynes appealed his sentence. We asked appointed counsel to brief whether
possessing a firearm as a convicted felon constituted a violent felony under the
Armed Career Criminal Act. Appointed counsel argued that Haynes was no longer
eligible for an enhancement under the Act, but that Haynes nevertheless remained
eligible for the career-offender enhancement under the Guidelines. Appointed
counsel then moved to withdraw his representation, and we granted that motion.
Haynes next filed a pro se motion to vacate his sentence, which raised seven
arguments. Relevant to this appeal, Haynes argued that his sentence exceeded the
statutory maximum because he was not an armed career criminal. Haynes also
argued that he was erroneously sentenced as a career offender under the Guidelines
because his prior convictions were not crimes of violence.
The district court granted the motion to vacate in part. The district court
ruled that Haynes’s 322-month sentence for possessing a firearm and ammunition
as a convicted felon, 18 U.S.C. § 922(g), exceeded the applicable 10-year statutory
maximum, id. § 924(a)(2). In the same order, the district court rejected Haynes’s
argument that he was not a career offender. The district court ruled that Haynes
procedurally defaulted his argument that he was not a career offender because he
failed to raise that argument in his direct appeal. The district court concluded that
Haynes could not establish cause and prejudice to overcome that procedural
default. As part of its partial grant of relief, the district court ordered that Haynes
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“be resentenced on count three of case 6:07-cr-[000]54.” The district court ordered
only that count—possession of a firearm and ammunition as a convicted felon, id.
§ 922(g)—vacated.
The next day, the district court resentenced Haynes. When the resentencing
court began the hearing, it called only case no. 6:07-cr-00054. The court then
stated it planned “to take care of the business addressed in [the] Court’s [motion to
vacate] order dated April 25, 2012,” which “require[d] resentencing because the
sentence imposed in count three was illegal.” Defense counsel agreed that the court
had convened resentencing for that purpose. Defense counsel also acknowledged
that “obviously” the court was “not going to touch the other case,” case no. 6:07-
cr-00073, involving the two-count indictment for possession with intent to
distribute crack cocaine.
Defense counsel urged the resentencing court to “restructure” the total
sentence in case no. 6:07-cr-00054 by modifying all three counts, but the court
questioned its jurisdiction to modify anything other than the sentence for
possession of a firearm and ammunition as a convicted felon, the only sentence the
court vacated in its order partially granting the motion to vacate. Defense counsel
persisted and asked that the court resentence count three to the statutory maximum
penalty, 120 months, which could run concurrently with a 262-month sentence for
count one, the drug offense, and consecutively with a 60-month sentence for count
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two, the other firearm offense. That way, the total sentence would still equal 322
months. The district court again doubted it could modify the sentences for the other
counts:
No, I don’t think I can do that. Because the original sentence was 322
months on each of counts one, two, and three . . . .
The only thing I think I have jurisdiction to do is address counts three
of that. I think the net is the same, but the structure is different.
Because I don’t think I can go back, based on the current ruling as
issued by the Court; go back and disturb counts one and two. I’ve only
addressed three.
The prosecutor then pointed the resentencing court to case law for the proposition
that the resentencing court had the authority to adjust Haynes’s sentence for all
three counts.
Based on that agreement of the parties, the district court resentenced Haynes
as follows: 262 months of imprisonment on count one for possession with intent to
distribute crack cocaine; 60 months of imprisonment on count two for carrying or
using a firearm during and in relation to a crime of violence; and 120 months of
imprisonment on count three for possessing a firearm and ammunition as a
convicted felon. Haynes would serve the 262-month and 120-month sentences
concurrently and then serve the 60-month sentence consecutively. The total
sentence remained 322 months of imprisonment, which Haynes would serve
concurrently with the two 322-month sentences in case no. 06:07-cr-00073. After
announcing the restructured sentence, the court stated that “[t]he remaining
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portions of the original judgment remain in effect” and that “the amendment only
goes to th[e] extent just announced.”
At the end of the resentencing hearing, Haynes reasserted his objection that
he was erroneously sentenced as a career offender. The resentencing court allowed
him to restate his objection. Defense counsel admitted that she understood that the
objection would not have any effect on the resentencing proceedings and
understood that the court had already denied that objection.
After his resentencing, Haynes applied for a certificate of appealability to
contest the denial of the other claims he raised in the motion to vacate his sentence.
He asked to appeal, in part, the career-offender enhancement. In his application,
Haynes raised an altogether new argument about the career-offender enhancement.
Haynes’s newly appointed counsel discovered that one of the prior convictions
cited in the presentence investigation report was too old to count for purposes of
Haynes’s criminal history score and the career-offender enhancement. See
U.S.S.G. § 4A1.2(e), (k). But a judge of this Court denied his application, and a
two-judge panel affirmed that denial. Without a certificate of appealability, we will
not consider in this appeal his arguments about the partial denial of the motion to
vacate. 28 U.S.C. § 2253(c)(1). We decline to reconsider for a second time the
denial of his application, which presents an issue that Haynes failed to raise in the
district court. See 11th Cir. R. 22-1(c) (“The denial of a certificate of appealability,
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whether by a single circuit judge or by a panel, may be the subject of a motion for
reconsideration but may not be the subject of a petition for panel rehearing or a
petition for rehearing en banc.”); see also Johnson v. United States, 340 F.3d 1219,
1228 n.8 (11th Cir. 2003) (“Arguments not raised in the district court are
waived.”), aff’d, 544 U.S. 295, 125 S. Ct. 1571 (2005).
II. STANDARD OF REVIEW
When a defendant raises a sentencing argument for the first time on appeal,
we review any alleged error for plain error. United States v. Bonilla, 579 F.3d
1233, 1238 (11th Cir. 2009). That standard requires an error, that is plain, which
affects substantial rights, and which “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 1238–39 (alteration and internal
quotation marks omitted). But if a defendant has “invited error,” that error will not
be grounds for reversal on appeal. United States v. Love, 449 F.3d 1154, 1157
(11th Cir. 2006). We review for abuse of discretion the decision of a resentencing
court to limit the scope of resentencing after remand from a court of collateral
review. United States v. Bryant, 246 F.3d 650, 654 (6th Cir. 2001).
III. DISCUSSION
In the two consolidated appeals, nos. 12-12689 and 12-13244, now before
us, Haynes appeals his sentences. Haynes urges us to vacate those sentences so that
a resentencing court can recalculate his guideline range and resentence him without
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the career-offender enhancement. Relatedly, Haynes also contends that the new
penalties under the Fair Sentencing Act, 21 U.S.C. § 841(b)(1)(B)(iii), and an
erroneous criminal history score warrant recalculating his guideline range.
We decline to vacate Haynes’s sentences. When a court of collateral review
grants a federal prisoner relief, section 2255 calls for an “appropriate” remedy. 28
U.S.C. § 2255(b) (“[T]he 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.”). It was an “appropriate” remedy to vacate only the
sentence exceeding the statutory maximum. And, as Haynes invited the
resentencing court to do, the resentencing court exercised its discretion when it
limited the resentencing hearing to correct only that issue. We will not now correct
errors that Haynes invited the district court to ignore and that are wholly unrelated
to the error corrected during resentencing.
“It is a cardinal rule of appellate review that a party may not challenge as
error a ruling or other trial proceeding invited by that party.” United States v. Ross,
131 F.3d 970, 988 (11th Cir. 1997) (internal quotation marks omitted). When a
party invites an error, we are precluded from invoking plain-error review to reverse
that error. See United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). For
example, in United States v. Love, a defendant “repeatedly requested” the court to
impose a term of imprisonment followed by a term of supervised release. 449 F.3d
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at 1155. Then on appeal, the defendant argued that he was ineligible for supervised
release and that the court should vacate the portion of his sentence requiring
supervised release. Id. at 1155–56. Even though the defendant likely was ineligible
for supervised release, we refused to vacate that part of the defendant’s sentence
because he invited the error. Id. at 1157; see also United States v. Mancera-Perez,
505 F.3d 1054, 1057 n.3, 1058 (10th Cir. 2007) (ruling that error was invited when
a defendant failed to offer any argument at sentencing for a lower sentence and
agreed with the district court that the length of the sentence imposed was
reasonable).
Haynes asks us to vacate not only the restructured sentence, but also the two
322-month sentences in case no. 6:07-cr-00073, but Haynes did not ask the
resentencing court to modify those sentences. Haynes’s position now—that the two
sentences from case no. 6:07-cr-00073 are also in play—is inconsistent with the
position he took at resentencing. The resentencing court called only case no. 6:07-
cr-00054, and Haynes did not object. Haynes’s counsel told the resentencing court
that the parties were “here for” only “the first case, the 7-54 case” and that
“obviously” the resentencing court was “not going to touch the other case.” Haynes
then specifically asked the district court to modify only the sentences in case no.
6:07-cr-00054. Near the end of the proceedings, Haynes did not object when the
resentencing court stated that “[t]he remaining portions of the original judgment
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remain in effect” and “the amendment only goes to th[e] extent just announced.”
The resentencing court then issued a new judgment in both cases only to reaffirm
that Haynes would serve the sentences concurrently.
We refuse to entertain Haynes’s argument that the resentencing court should
have corrected the two sentences in case no. 6:07-cr-00073—a dubious proposition
given the limited scope of collateral relief—because Haynes invited the court to
limit the resentencing proceedings to case no. 6:07-cr-00054. At resentencing,
Haynes remarked that “obviously” the resentencing court would “not . . . touch the
other case.” We will not now fault the district court for abiding by his request. See
Silvestri, 409 F.3d at 1327.
Haynes also invited the resentencing court to limit the resentencing to
restructuring the sentences affected by the partially vacated sentence. At the
resentencing, all parties acknowledged that they were there to correct the 322-
month sentence for possession of a firearm and ammunition as a convicted felon,
18 U.S.C. § 922(g), which exceeded the statutory maximum, id. § 924(a)(2). And
defense counsel herself proposed the amended sentence lengths. To be sure,
defense counsel reasserted the objection to the career-offender enhancement at the
end of the resentencing, but she expressed that she did not expect that objection to
have any “effect” on the resentencing.
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Given this conduct at the resentencing, we will not entertain Haynes’s
argument about the career-offender enhancement. Just as the defendant in Love
asked for a sentence with supervised release, 449 F.3d at 1155–57, Haynes asked
for an amended sentence that incorporated the career-offender enhancement.
Because Haynes appeals the very sentence he invited the resentencing court to
impose, we decline to review the alleged errors.
We finally note that, even if Haynes had not invited the resentencing court to
limit its review, a resentencing court has the discretion to limit resentencing to the
“appropriate” relief granted in the order to vacate, set aside, or correct the
prisoner’s sentence. 28 U.S.C. § 2255(b). Haynes’s court of collateral review ruled
that the sentence imposed for his conviction for possession of a firearm and
ammunition as a convicted felon was illegal. As a result, the court vacated that
particular sentence and ordered resentencing. In that same order granting partial
relief, the court denied relief to Haynes on the basis that he was erroneously
sentenced as a career offender. We cannot now rule that the resentencing court
abused its discretion when it did not address Haynes’s argument that he was
erroneously sentenced as a career offender—an argument that the district court on
collateral review denied—and instead limited the resentencing to the counts
affected by the collateral-review proceedings. See United States v. Willis, 649 F.3d
1248, 1256 (11th Cir. 2011) (“The district court rejected [the defendant’s
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arguments] regarding those issues and had no reason to relitigate what had, in its
view, been decided without error.”); Bryant, 246 F.3d at 654 (“When a district
court orders a resentencing the court has the power to determine the appropriate
scope of the resentencing.”); United States v. Jones, 114 F.3d 896, 897 (9th Cir.
1997) (“[T]he statute[, 28 U.S.C. § 2255,] gives district judges wide berth in
choosing the proper scope of post-2255 proceedings.”); United States v. Moore, 83
F.3d 1231, 1235 (10th Cir. 1996) (“[W]here the district court itself ordered the
vacation, it has the discretion to determine the scope of the resentencing.”).
IV. CONCLUSION
We AFFIRM Haynes’s sentence.
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