Clemons v. Mississippi

494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725, 1990 U.S. LEXIS 1667

• Court: Supreme Court of the United States
• Decided: April 17, 1990
• Docket: 88-6873
• Status: Published

Opinions

Justice White

delivered the opinion of the Court.

The Mississippi Supreme Court upheld the death sentence imposed on Chandler Clemons even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was “especially heinous, atrocious, or cruel,” was constitutionally invalid in light of our decision in Maynard v. Cartwright, 486 U. S. 356 (1988). Although we hold that the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review, we vacate the judgment below and remand, because it is unclear whether the Mississippi Supreme Court correctly employed either of these methods.

I

On the evening of April 17, 1987, petitioner Clemons complained to friends that he needed money and suggested a robbery of a pizza delivery man. Clemons used a pay telephone to order a pizza to be delivered to an apartment complex. He and two others, Calvin and Hay, went to the complex in a car and waited. When the pizza delivery vehicle arrived, Clemons and Hay got out of the car; Clemons carried a shotgun belonging to Hay. Clemons stopped and entered the delivery vehicle and ordered the driver, Arthur Shorter, to get out of the car. Shorter was told to take any money he had out of his pockets, which he did. Clemons then told Shorter to lie down, took a bag of money and some pizza from the delivery vehicle, and was about to return to the car where Calvin was sitting when Hay asked if Shorter had seen Clemons’ face. When Clemons answered in the affirmative, Hay told him he had to kill Shorter. Shorter begged for his life but Clemons shot him and got into the car with Hay and Calvin. As they drove away, Calvin looked back and saw Shorter raise his head once. Shorter died shortly thereafter.

The three men eventually went home. Clemons disposed of the shotgun in a hole in his backyard. Calvin, however, later that night related the robbery and shooting incident to his sister’s friend, who happened to be a county jailer. The next day Clemons was arrested at his home and later made a videotaped statement in which he admitted being part of the group that robbed Shorter but denied foreknowledge of the robbery plan and denied that he had been the killer. Before trial Clemons also told the Sheriff where he had hidden the gun.

Clemons was indicted for capital murder and, after a change of venue, was tried before a jury. The principal witness against Clemons was Calvin, who had entered into a plea agreement with the State of Mississippi. Clemons was convicted of capital murder and a sentencing hearing was held. At the sentencing hearing, the State presented evidence arguably establishing that two statutory aggravating factors were present in this case: (1) that the murder was committed during the course of a robbery for pecuniary gain and (2) that it was an “especially heinous, atrocious or cruel” killing. Clemons presented testimony from his mother and a psychologist regarding mitigating evidence. The State argued the “especially heinous” factor extensively and with regard to that factor the trial court instructed the jury in the bare terms of the Mississippi statute.¹ The jury was further instructed several times that it need not sentence Clemons to death even if it found that no mitigating circumstances were present. The jury sentenced Clemons to death, finding that both aggravating factors argued by the State were present and that they outweighed any mitigating circumstances.

Clemons appealed his conviction and sentence to the Mississippi Supreme Court, and that court affirmed. 535 So. 2d 1354 (1988). After rejecting Clemons’ arguments regarding guilt and several of his challenges to the sentencing proceeding, the court addressed the validity of the “especially heinous” aggravating factor even though Clemons had never raised the issue. The court began by noting that our decision in Maynard v. Cartwright, supra, had invalidated Oklahoma’s identical “especially heinous, atrocious, or cruel” aggravating circumstance because it was unconstitutionally vague and did not provide sufficient guidance to the jury in deciding whether to impose the death penalty. The court also recognized that we had refused to sustain the death penalty in Maynard, even though valid aggravating circumstances remained, because Oklahoma had no procedure for salvaging death sentences under such circumstances and that we had left the question of the effect of possible constitutional limiting constructions of the “especially heinous” factor to the Oklahoma courts in the first instance.

The Mississippi Supreme Court distinguished this case from Maynard and sustained Clemons’ death sentence on the following grounds: (1) in Mississippi there is an established procedure that “when one aggravating circumstance is found to be invalid or unsupported by the evidence, a remaining valid aggravating circumstance will nonetheless support the death penalty verdict,” 535 So. 2d, at 1362 (citing cases); (2) the Mississippi Supreme Court has previously given the “especially heinous” factor a constitutional limiting construction, narrowing that category to murders that are conscienceless or pitiless and unnecessarily torturous to the victim, id., at 1363 (citing Coleman v. State, 378 So. 2d 640, 648 (1979)); and (3) the trial court gave the jury no less than seven instructions that “singly and collectively told the jury that regardless of aggravating circumstances, they were not required to impose the death penalty,” even “if . . . there were no mitigating circumstances.” 535 So. 2d, at 1364 (citing instructions).

The court then stated that given all of these considerations plus “the brutal and torturous facts surrounding the murder of Arthur Shorter ... it is inescapable that Maynard v. Cartwright does not dictate the outcome of the case sub ju-' dice.” Ibid. The court added that “[w]e likewise are of the opinion beyond a reasonable doubt that the jury’s verdict would have been the same with or without the ‘especially heinous, atrocious or cruel’ aggravating circumstance.” Ibid. Finally, the court conducted its proportionality review. The court noted that it had reviewed the record and stated that “[i]n our opinion . . . the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other . . . .” Id., at 1365. Three justices dissented, arguing that the sentence should be vacated and the case remanded to a jury for resentencing with properly defined aggravating factors. We granted certiorari, 491 U. S. 904 (1989).

II.

We deal first with petitioner’s submission that it is constitutionally impermissible for an appellate court to uphold a death sentence imposed by a jury that has relied in part on an invalid aggravating circumstance. In Zant v. Stephens, 462 U. S. 862 (1983), we determined that in a State like Georgia, where aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury. We withheld opinion, however, “concerning the possible significance of a holding that a particular aggravating circumstance is ‘invalid’ under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty.” Id., at 890. In Mississippi, unlike the Georgia scheme considered in Zant, the finding of aggravating factors is part of the jury’s sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances.² Although these differences complicate the questions raised, we do not believe that they dictate reversal in this case.

A

Nothing in the Sixth Amendment as construed by our prior decisions indicates that a defendant’s right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence. Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court. Cabana v. Bullock, 474 U. S. 376 (1986), held that an appellate court can make the findings required by Enmund v. Florida, 458 U. S. 782 (1982), in the first instance and stated that “[t]he decision whether a particular punishment — even the death penalty — is appropriate in any given case is not one that we have ever required to be made by a jury.” 474 U. S., at 385. Spaziano v. Florida, 468 U. S. 447 (1984), ruled that neither the Sixth Amendment, nor the Eighth Amendment, nor any other constitutional provision provides a defendant with the right to have a jury determine the appropriateness of a capital sentence; neither is there a double jeopardy prohibition on a judge’s override of a jury’s recommended sentence. Likewise, the Sixth Amendment does not require that a jury specify the aggravating factors that permit the imposition of capital punishment, Hildwin v. Florida, 490 U. S. 638 (1989), nor does it require jury sentencing, even where the sentence turns on specific findings of fact. McMillan v. Pennsylvania, 477 U. S. 79, 93 (1986).

B

To avoid the import of these cases, Clemons argues that under Mississippi law only a jury has the authority to impose a death sentence, see Miss. Code Ann. §99-19-101 (Supp. 1989), and that he therefore has a liberty interest under the Due Process Clause of the Fourteenth Amendment in having a jury make all determinations relevant to his sentence. He therefore argues that an appellate court cannot reweigh the balance of factors when the jury has found and relied on an invalid aggravating circumstance. Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause, Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion), and we have recognized that when state law creates for a defendant a liberty interest in having a jury make particular findings, speculative appellate, findings will not suffice to protect that entitlement for due .process purposes. Hicks v. Oklahoma, 447 U. S. 343 (1980). However, these two general propositions do not lead to the result Clemons seeks.

In Hicks v. Oklahoma, sentence had been imposed under an invalid recidivist statute that provided for a mandatory 40-year sentence. The Oklahoma Court of Criminal Appeals affirmed the sentence because it was within the range of possible sentences the jury validly could have imposed. Hicks claimed, and the State conceded, that in Oklahoma only the jury could impose sentence. We held that under state law Hicks had a liberty interest in having the jury impose punishment, an interest that could not be overcome by the “frail conjecture” that the jury “might” have imposed the same sentence in the absence of the recidivist statute. Id., at 346. We specifically pointed out, however, that the Oklahoma Court of Criminal Appeals did not “purport to cure the deprivation by itself reconsidering the appropriateness” of the 40-year sentence, id., at 347 (footnote omitted), thus suggesting that appellate sentencing, if properly conducted, would not violate due process of law.

Contrary to the situation in Hicks, the state court in this case, as it had in others, asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed even though one of the two aggravating circumstances on which the jury had relied should not have been, or was improperly, presented to the jury. The court did not consider itself bound in such circumstances to vacate the death sentence and to remand for a new sentencing proceeding before a jury. We have no basis for disputing this interpretation of state law, which was considered by the court below to be distinct from its asserted authority to ¡affirm the sentence on the ground of harmless error, and which plainly means that we must reject Clemons’ assertion that he had an unqualified liberty interest under the Due Process Clause td have the jury assess the consequence of the invalidation of one of the aggravating circumstances on which it had been instructed. In this respect, the case is analogous to Cabana v. Bullock, supra, where we specifically rejected a due process challenge based on Hicks because state law created no entitlement to have a jury make findings that an appellate court also could make.³ 474 U. S., at 387, and n. 4.

c

Clemons also submits that appellate courts are unable to fully consider and give effect to the mitigating evidence presented by defendants at the sentencing phase in a capital case and that it therefore violates the Eighth Amendment for an appellate court to undertake to reweigh aggravating and mitigating circumstances in an attempt to salvage the death sentence imposed by a jury. He insists, therefore, that he is entitled to a new sentencing hearing before a jury and that the decision below must be reversed. We are unpersuaded, however, that our cases require this result. Indeed, they point in the opposite direction.

The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. See, e. g., Spaziano v. Florida, supra, at 460; Zant v. Stephens, 462 U. S., at 879; Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Gregg v. Georgia, 428 U. S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the “twin objectives” of “measured consistent application and fairness to the accused.” Eddings, supra, at 110-111. See also Lockett, supra, at 604 (emphasizing the importance of reliability). Nothing inherent in the process of appellate reweighing is inconsistent with the pursuit of the foregoing objectives.

We see no reason to believe that careful appellate weighing of aggravating against mitigating circumstances in cases such as this would not produce “measured consistent application” of the death penalty or in any way be unfair to the defendant. It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in “weighing” States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. And, as the opinion below indicates, a similar process of weighing aggravating and mitigating evidence is involved in an appellate court’s proportionality review. Furthermore, this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency. See, e. g., Gregg v. Georgia, supra, at 204-206 (joint opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Dobbert v. Florida, 432 U. S. 282, 295-296 (1977); Jurek v. Texas, 428 U. S. 262, 276 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). It is also.important to note that state supreme courts in States authorizing the death penalty may well review many death sentences and that typical jurors, in contrast, will serve on only one such case during their lifetimes. See Proffitt, supra, at 252-253. Therefore, we conclude that state appellate courts can and do give each defendant an individualized and reliable sentencing determination based on the defendant’s circumstances, his background, and the crime.

This is surely the import of Cabana v. Bullock, 474 U. S. 376 (1986), which held that a state appellate court could make the finding that Enmund v. Florida, 458 U. S. 782 (1982), required for the imposition of the death penalty, i. e. whether the defendant had killed, attempted to kill, or intended to kill. Wainwright v. Goode, 464 U. S. 78 (1983) (per curiam), is likewise instructive. There, a Florida trial judge relied on an allegedly impermissible aggravating circumstance (“future dangerousness”) in imposing a death sentence on Goode. The Florida Supreme Court conducted an independent review of the record, reweighed the mitigating and aggravating factors, and concluded that the death penalty was warranted. In a federal habeas proceeding, Goode then successfully chailenged the trial court’s reliance on the allegedly impermissible factor. We reversed the grant of the writ and concluded that even if the trial judge relied on a factor not available for his consideration under Florida law, the sentence could stand. “Whatever may have been true of the sentencing judge, there is no claim that in conducting its independent reweighing of the aggravating and mitigating circumstances the Florida Supreme Court considered Goode’s future dangerousness. Consequently there is no sound basis for concluding that the procedures followed by the State produced an arbitrary or freakish sentence forbidden by the Eighth Amendment.” Id., at 86-87.⁴

We accordingly see nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence. Nor are we impressed with the claim that without written jury findings concerning mitigating circumstances, appellate courts cannot perform their proper role. In Spaziano and Proffitt, we upheld the Florida death penalty scheme permitting a trial judge to override a jury’s recommendation of life even though there were no written jury findings. An appellate court also is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings.

Ill

Clemons argues that even if appellate reweighing is permissible-, the Mississippi Supreme Court did not actually reweigh the evidence in this case and instead simply held that when an aggravating circumstance relied on by the jury has been invalidated, the sentence may be affirmed as long as there remains at least one valid and undisturbed aggravating circumstance, an approach that requires no weighing whatsoever. The State on the other hand insists that a proper reweighing of aggravating circumstances was undertaken.

We find the opinion below unclear with respect to whether the Mississippi Supreme Court did perform a weighing function, either by disregarding entirely the “especially heinous” factor and weighing only the remaining aggravating circumstance against the mitigating evidence, or by including in the balance the “especially heinous” factor as narrowed by its prior decisions and embraced in this case. At one point the court recites the proper limiting construction of the “especially heinous” aggravating factor, 535 So. 2d, at 1363, and at times the court’s opinion seems to indicate that the court was reweighing the mitigating circumstances and both aggravating factors by applying the proper definition to the “especially heinous” factor. For example, at one point the court refers to the “brutal and torturous facts” surrounding Shorter’s murder and elsewhere states that “the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other.” Id., at 1364, 1365. At other times, however, the opinion indicates that the court may have been employing the other approach and disregarding the “especially heinous” factor entirely. “[T]his Court (Mississippi) has held and established unequivocally through the years that when one aggravating circumstance is found to be invalid or unsupported by the evidence, a remaining valid aggravating circumstance will nonetheless support the death penalty verdict.” Id., at 1362.

In addition, although the latter statement does not necessarily indicate that no reweighing was undertaken, the court’s statement can be read as a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance. If that is what the Mississippi Supreme Court meant, then it was not conducting appellate reweighing as we understand the concept. An automatic rule of affirmance in a weighing State would be invalid under Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances. Cf. Barclay v. Florida, 463 U. S. 939, 958 (1983) (plurality opinion). Additionally, because the Mississippi Supreme Court’s opinion is virtually silent with respect to the particulars of the allegedly mitigating evidence presented by Clemons to the jury, we cannot be sure that the court fully heeded our cases emphasizing the importance of the sentencer’s consideration of a defendant’s mitigating evidence. We must, therefore, vacate the judgment below, and remand for further proceedings, insofar as the judgment purported to rely on the State Supreme Court’s reweighing of aggravating and mitigating circumstances. Cf., Cabana v. Bullock, 474 U. S., at 390-392.

IV

Even if under Mississippi law, the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless. See, e. g., Satterwhite v. Texas, 486 U. S. 249 (1988). As the plurality in Barclay v. Florida, supra, opined, the Florida Supreme Court could apply harmless-error analysis when reviewing a death sentence imposed by a trial judge who relied on an aggravating circumstance not available for his consideration under Florida law:

“Cases such as [those cited by the petitioner] indicate that the Florida Supreme Court does not apply its harmless-error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. . . . What is important... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.’ Zant, [462 U. S.], at 879 (emphasis in original).” Id., at 958.

Clemons argues, however, that the Mississippi Supreme Court incorrectly applied the harmless-error rule, that the court acted arbitrarily in applying it to his case when it refused to do so in a similar case, and that the State failed to prove beyond a reasonable doubt that any error was harmless.

With regard to harmless error, the Mississippi Supreme Court made only the following statement: ‘We likewise are of the opinion beyond a reasonable doubt that the jury’s verdict would have been the same with or without the ‘especially heinous, atrocious or cruel’ aggravating circumstance.” 535 So. 2d, at 1364. Although the court applied the proper “beyond a reasonable doubt” standard, see Chapman v. California, 386 U. S. 18, 24 (1967), its cryptic holding suggests that it was beyond reasonable doubt that the sentence would have been the same even if there had been no “especially heinous” instruction at all and only the aggravating circumstance that the murder was committed in the course of a robbery for pecuniary gain was to be balanced against the mitigating circumstances. We agree that it would be permissible to approach the harmless-error question in this fashion, but if this is the course the court took, its ultimate conclusion is very difficult to accept. As Clemons points out, the State repeatedly emphasized and argued the “especially heinous” factor during the sentencing hearing. The State placed little emphasis on the “robbery for pecuniary gain” factor. Under these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error in giving the invalid “especially heinous” instruction was harmless.

It is perhaps possible, however, that the Mississippi Supreme Court intended to ask whether beyond reasonable doubt the result would have been the same had the especially heinous aggravating circumstance been properly defined in the jury instructions; and perhaps on this basis it could have determined that the failure to instruct properly was harmless error. Because we cannot be sure which course was followed in Clemons’ case, however, we vacate the judgment insofar as it rested on harmless error and remand for further proceedings.

V

Nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding.Our holding is only that such procedures are constitutionally permissible. In some situations, a state appellate court may conclude that peculiarities in a case make appellate reweighing or harmless-error analysis extremely speculative or impossible. We have previously noted that appellate courts may face certain difficulties in determining sentencing questions in the first instance. See Caldwell v. Mississippi, 472 U. S. 320, 330-331 (1985). Nevertheless, that decision is for state appellate courts, including the Mississippi Supreme Court in this case, to make.⁵

VI

For the foregoing reasons the judgment of the Mississippi Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.

1 The court instructed the jury as follows: “Consider only the following elements, if any, of aggravation in determining whether the death penalty should be imposed: ... (2) The Capital offense was especially heinous, atrocious, or cruel.” App. 25. This language is identical to that in Miss. Code Ann. § 99 — 19—101(5)(h) (Supp. 1989), which provides that “[alggravating circumstances shall be limited to the following: . . . (h) The capital offense was especially heinous, atrocious or cruel.”

2 Mississippi Code Ann. § 99-19-101(3)(c) (Supp. 1989) provides that “[f]or the jury to impose a sentence of death, it must unanimously find . . . (c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.”

3 We note also that although Hicks and a due process rationale were argued by the respondent in Zant v. Stephens, 462 U. S. 862 (1983), see Brief for Respondent, O. T. 1982, No. 81-89, pp. 37-38, and by the dissenters in Barclay v. Florida, 463 U. S. 939, 985-986 (1983), the Court implicitly rejected those arguments in both cases by refusing to address them.

4 Along similar lines, in Solem v. Helm, 463 U. S. 277 (1983), the Court concluded that appellate courts are capable of comparing the propriety of different criminal sentences and noted that “[t]he easiest comparison, of course, is between capital punishment and noncapital punishments, for the death penalty is different from other punishments in kind rather than degree.” Id,., at 294 (footnote omitted).

5 We find unpersuasive Clemons’ argument that the Mississippi Supreme Court’s decision to remand to a sentencing jury in Johnson v. State, 511 So. 2d 1333 (1987), rev’d, 486 U. S. 578 (1988), on remand, 547 So. 2d 59 (1989), a case in which this Court reversed the death sentence because it depended in part on a jury finding that the “especially heinous” aggravating factor was present, indicates that the Mississippi Supreme Court acted arbitrarily in refusing to do the same in this case. Johnson is distinguishable because in that case the jury had found both that the defendant had been convicted of a prior violent felony and that the murder was especially heinous, atrocious, or cruel. In fact, the prior conviction the jury relied upon had been vacated and thus the jury was permitted to consider inadmissible evidence in determining the defendant’s sentence. This Court noted in vacating the sentence that the Mississippi Supreme Court’s refusal to rely on harmless-error analysis in upholding the sentence was “plainly justified” because the error “extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible” and in fact permitted the jury “to consider evidence that [was] revealed to be materially inaccurate.” 486 U. S., at 590. The Court did not hold that the Mississippi Supreme Court could not have applied harmless-error analysis.

Given that two aggravating factors had been invalidated and inadmissible evidence had been presented to the jury, it was not unreasonable for the Mississippi Supreme Court to conclude that it could not conduct the harmless-error inquiry or adequately reweigh the mitigating factors and aggravating circumstances in Johnson. By contrast, in this case there is no serious suggestion that the State’s reliance on the “especially heinous” factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances surrounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing sentence. A state appellate court’s decision to conduct harmless-error analysis or to reweigh aggravating and mitigating factors rather than remand to the sentencing jury violates the Constitution only if the decision is made arbitrarily. We cannot say that the Mississippi Supreme Court’s refusal to remand in this case was rendered arbitrary by its decision to remand in Johnson.