from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:10-cr-00317-GKS-KRS-1
MARCUS, MARTIN, and NEWSOM, Circuit Judges.
MARTIN, CIRCUIT JUDGE:
Brown, who is a federal prisoner, brings this appeal of the
sentence imposed on him in District Court, after that court
granted his motion to vacate or correct his earlier sentence,
filed pursuant to 28 U.S.C. § 2255.
§ 2255 motion, Mr. Brown attacked his original sentence,
saying that in light of Johnson v. United States,
576 U.S.___, 135 S.Ct. 2551 (2015), he no longer qualified
for a 15-year sentence under the Armed Career Criminal Act,
18 U.S.C. § 924(e) ("ACCA"). The District
Court agreed and vacated Mr. Brown's 15-year sentence.
However, the District Court went on to resentence Mr. Brown
to a 10-year term of imprisonment, which is the longest
sentence allowed under Mr. Brown's statute of conviction.
Mr. Brown's new 10-year sentence is a significant upward
variance from his corrected guideline range. The District
Court imposed this statutory maximum sentence without
conducting a resentencing hearing and without giving any
explanation for the sentence. Mr. Brown argues here on appeal
that the District Court erred by (1) correcting his sentence
without conducting a resentencing hearing with Mr. Brown in
attendance, and (2) imposing a sentence well above the
guideline range without any explanation. After careful
review, and with the benefit of oral argument, we vacate Mr.
Brown's sentence and remand for a sentencing hearing, in
which he can be present and allocute.
2011, Mr. Brown pled guilty to one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1). Mr. Brown was sentenced to 15-years imprisonment,
which is the mandatory minimum sentence required for ACCA
defendants who have three earlier felony convictions that
meet the definition given in the statute. Notably, for
defendants who have not three, but instead one or two earlier
convictions, the statute allows a sentence of no more than
ten years. Mr. Brown's 15-year ACCA sentence was based on
three predicate crimes: (1) a 2004 Florida conviction for
sale of cocaine; (2) a 2005 Florida conviction for sale of
cocaine; and (3) a 2009 Florida conviction for fleeing or
2015, Mr. Brown filed a 28 U.S.C. § 2255 motion in light
of the Supreme Court's decision in Johnson v. United
States, 576 U.S., 135 S.Ct. 2551 (2015). A motion filed
pursuant to 28 U.S.C. § 2255 is a civil proceeding,
separate from the criminal sentence it attacks. In his §
2255 motion, Mr. Brown argued that one of his predicate
convictions, fleeing and eluding, no longer qualified as a
"violent felony" so as to make him eligible for the
15-year ACCA sentence. The government agreed that Mr.
Brown's 15-year sentence should be vacated. However, it
asked the District Court to simply impose a new sentence of
10-years imprisonment and advised the court no sentencing
hearing was necessary. Again, ten years is the highest
sentence allowed under Mr. Brown's new statute of
conviction. Mr. Brown filed a written objection, asserting
that he was entitled to a resentencing hearing.
District Court held no hearing, but granted Mr. Brown's
§ 2255 motion. The Order granting the motion said it
"corrected" Mr. Brown's sentence "to
reflect a revised term of 120 months' incarceration
followed by three years' supervised release." In
addition to holding no resentencing hearing in connection
with Mr. Brown's resentencing, the court gave no
explanation for the sentence it imposed. Mr. Brown filed a
motion for reconsideration, again asking the District Court
to hold a resentencing hearing. And again, Mr. Brown's
motion was denied without any hearing or explanation. Mr.
Brown then filed a timely notice of appeal in his § 2255
proceeding, and requested a motion for a Certificate of
Appealability ("COA") on the issue of whether he
was entitled to a resentencing hearing. The District Court
denied Mr. Brown's motion, but this Court granted him a
COA on the issue now before us.
with its judgment in Mr. Brown's § 2255 case (the
civil proceeding), the District Court entered an amended
judgment in Mr. Brown's criminal case. The
"Statement of Reasons" entered by the District
Court in connection with the new 10-year sentence showed that
Mr. Brown's new sentencing guideline range was 77 to 96
months, and noted that his old sentence was
"vacated." It also noted the District Court was
imposing an upward variance and sentencing Mr. Brown to a
120-month term of imprisonment. Mr. Brown filed a timely
notice of appeal in his criminal case, in addition to the one
already filed in the § 2255 proceeding. Mr. Brown argued
that because the District Court failed to give him a
resentencing hearing, it (1) didn't properly consider the
factors it is required to consider under 18 U.S.C. §
3553(a); and (2) didn't consider his
post-sentencing conduct. This Court consolidated Mr.
Brown's civil and criminal appeals.
appeal from a proceeding on a motion to vacate, set aside, or
correct a sentence, we review legal issues de novo.
Osborne v. Terry, 466 F.3d 1298, 1304- 05 (11th Cir.
2006). We also review de novo "questions
involving the legality of a criminal sentence, "
United States v. Taylor, 11 F.3d 149, 151 (11th Cir.
1994) (per curiam), which includes the District Court's
failure to give a specific reason for a non-guideline
sentence as required by 18 U.S.C. § 3553(c)(2).
United States v. Parks, 823 F.3d 990, 996 (11th Cir.
Brown argues here, as he did in the District Court, that the
court erred when it resentenced him without giving him a
hearing. This Court has not directly spoken to the standard
of review we should use in reviewing a District Court's
choice of remedy under 28 U.S.C. § 2255. However,
"[f]ederal habeas corpus practice . . . indicates that a
court has broad discretion in conditioning a judgment
granting habeas relief." Hilton v. Braunskill,
481 U.S. 770, 775, 107 S.Ct. 2113, 2118 (1987). And indeed
this Court has recognized "the broad, flexible power
conferred by section 2255." United States v.
Mixon, 115 F.3d 900, 903 (11th Cir. 1997). Other
circuits have held that a District Court's choice among
the remedies provided in § 2255 is reviewed for abuse of
discretion. See Loher v. Thomas, 825 F.3d 1103, 1111
(9th Cir. 2016); Woodfox v. Cain, 805 F.3d 639, 644
(5th Cir. 2015); Clayton v. Jones, 700 F.3d 435, 443
(10th Cir. 2012); United States v. Hadden, 475 F.3d
652, 667 (4th Cir. 2007); United States v.
Torres-Otero, 232 F.3d 24, 29-30 (1st Cir. 2000);
United States v. Gordon, 156 F.3d 376, 381 (2d Cir.
the approach of our sister circuits and will also review the
District Court's choice of § 2255 remedy for an
abuse of discretion. In doing so, we recognize there may be
more than one choice of remedy available to a District Court
in any given case. See United States v. Frazier, 387
F.3d 1244, 1259 (11th Cir. 2004) (en banc). As always,
however, a court abuses its discretion if it makes a choice
that is contrary to law. See Amlong & Amlong, P.A. v.
Denny's, Inc., 500 F.3d 1230, 1238 (11th Cir. 2007).
And, as discussed below, ...