USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14188 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:03-cr-00636-RWS-JFK-3, 1:16-cv-02033-RWS
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST ROMOND GIBBS, JR.,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 27, 2021)
Before NEWSOM, LAGOA, and BLACK, Circuit Judges.
PER CURIAM: USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 2 of 15
Ernest Gibbs, Jr., a federal prisoner, was granted relief under 28 U.S.C.
§ 2255 from one of his three counts of conviction in light of Davis v. United States,
139 S. Ct. 2319 (2019). He now appeals from the district court’s amended
judgment sentencing him to consecutive 240-month sentences, the statutory
maximum, as to each of his remaining counts of conviction. He asserts the district
court abused its discretion by resentencing him without conducting a formal
resentencing hearing, ordering an updated presentence investigation report (PSI),
or accepting sentencing memoranda, in violation of the standard set forth in Brown
v. United States, 879 F.3d 1231 (11th Cir. 2018). He also contends his new
sentence is procedurally unreasonable because the district court failed to consider
the 18 U.S.C. § 3553(a) factors and evidence of his post-sentencing rehabilitation,
in violation of Pepper v. United States, 562 U.S. 476 (2011). After review,1 we
affirm the district court.
I. BACKGROUND
A. Gibbs’s convictions and sentencing
In 2005, a jury found Gibbs guilty of conspiracy to commit robbery, in
violation of 18 U.S.C. § 1951(a) (Count 1); interference with interstate commerce
1 In an appeal from a proceeding on a motion to vacate, set aside, or correct sentence, we review legal issues de novo. Brown, 879 F.3d at 1234. We review a district court’s choice of a 28 U.S.C. § 2255 remedy for an abuse of discretion. Id. at 1235. We review a sentence’s reasonableness for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
2 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 3 of 15
by violence, in violation of 18 U.S.C. § 1951(a) (Count 2); and causing the death
of another by use of a firearm during the commission of a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(A)(iii), (j)(1) and 2 (Count 3).
Count 3 was predicated on Count 1 only.
Gibbs’s PSI stated that, in October 2003, Gibbs and codefendant Michael
Leggett accosted Moustfa Koura and Izzay Denney, Jr. at a bank in Atlanta,
Georgia. Without making any demands or saying anything to the victims, Gibbs
and Leggett discharged their firearms, killing Koura instantly and wounding
Denney, who returned fire and struck Leggett twice. Gibbs took several empty
canvas money bags that Denney had been carrying. Gibbs, Leggett, and
codefendant Travis Carter fled the bank and obtained no money during the
robbery.
The PSI, using the 2004 Guidelines manual, calculated Gibbs’s base offense
level at 43 as to both Counts 1 and 2 because, although the base offense level for
Counts 1 and 2 ordinarily would be 20, pursuant to U.S.S.G. § 2B3.1(a), the cross-
reference at § 2B3.1(c) stated the provision for first-degree murder in § 2A1.1
should be applied if a victim was killed under circumstances constituting murder
under 18 U.S.C. § 1111. Thus, because Koura was killed during the offense, the
PSI applied a base offense level of 43, and it applied no enhancements or
reductions. As for Count 3, the PSI stated that, pursuant to § 2K2.4(a), the
3 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 4 of 15
guideline sentence was the minimum term of imprisonment as required by statute.
The statutory minimum for causing a person’s death in the course of a § 924(c)
violation was “death or [] imprisonment for any term of years or for life,” pursuant
to § 924(j)(1). It stated the adjusted offense level for Count 3 was 43, pursuant to
U.S.S.G. § 2A1.1. With an additional 3-level increase for the 3 counts, Gibbs’s
combined total offense level was 46. With a criminal history category of II, and an
offense level of 46, Gibbs’s guideline range was life imprisonment with a statutory
maximum of 240 months’ imprisonment on both Counts 1 and 2.
At sentencing Gibbs introduced about 300 pages of special education
records from the school board and additional high school records. Gibbs’s sister
testified that she and Gibbs grew up in an abusive home. Dr. Jethro Toomer
testified to Gibbs’s intellectual disabilities, including that Gibbs met the diagnostic
criteria for “mild mental retardation.” Keith Johnson, Gibbs’s eighth grade
football coach, testified as to how Gibbs had helped another student overcome
depression, anxiety, and agoraphobia, and the student’s mother confirmed that
Gibbs had changed the student’s life dramatically.
In announcing his sentence, the district court stated that Gibbs’s offense
level was “at least a 43, category [II]” and that, “[e]ven if they are category [I],
both of those call for a mandatory life sentence. I see no ground for a downward
departure under the Guidelines, and would decline to depart.” In considering the
4 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 5 of 15
§ 3553(a) factors as they applied to both Gibbs and Leggett, the district court
emphasized the case involved a premeditated incident that resulted in felony
murder and that, in cases such as these, the sentence should be life imprisonment
99 percent of the time. As to Gibbs’s personal characteristics and history, it noted
Gibbs “clearly does seem to be a slow learner” and that “there is more to life than
one act of kindness in middle school and sadly, Mr. Gibbs has chosen to go a
different way since that rather heartwarming story.” Regarding deterrence and
protecting the public, it noted there was nothing before it to reassure it that Gibbs
would not commit an act of violence again and that, although he had not said that
he was sorry, it assumed that was because he was not a verbal person. Noting that
it believed there was still a chance of redemption and meaning, the court sentenced
Gibbs to 240 months as to Count 1, a consecutive 240 months as to Count 2, and a
consecutive life sentence as to Count 3. It did not impose a term of supervised
release, noting that doing so “would seem silly.”
Gibbs appealed, and this Court affirmed his conviction and sentences.
United States v. Gibbs, 237 F. App’x 550 (11th Cir. 2007).
B. Gibbs’s post-conviction motions
In 2016, Gibbs filed a pro se 28 U.S.C. § 2255 motion to vacate his
conviction and sentence for Count 3 based on Johnson v. United States, 576 U.S.
591 (2015) and requested appointment of counsel. The district court denied
5 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 6 of 15
Gibbs’s motions because his arguments were foreclosed by binding precedent, he
did not have a “separate [18 U.S.C.] § 924(c) conviction,” and his § 924(j)
conviction was not based on attempt to commit Hobbs Act robbery.
In 2019, Gibbs filed a pro se “Motion to Amend Judgment” pursuant to
Federal Rule of Civil Procedure 59(e), alternatively requesting his request be held
in abeyance pending the outcome in Davis, 139 S. Ct. 2319, and he again requested
appointment of counsel. The district court granted Gibbs’s motion for appointment
of counsel.
Gibbs, now represented by counsel, filed an amended 28 U.S.C. § 2255
motion to vacate based on Davis, asserting the predicate offense of conspiracy to
commit Hobbs Act robbery only qualified under 18 U.S.C. § 924(c)’s
unconstitutional residual clause. As for his remedy, he asserted the district court
must vacate the § 924(c), (j) conviction, unbundle the sentencing package, and
revisit the sentence imposed on Counts 1 and 2. He requested the court hold a
resentencing hearing, order an updated PSI on the remaining counts, and allow the
parties to argue for a revised sentence.
The Government responded and conceded that Gibbs’s § 924(c) conviction
must be vacated because it was predicated on the conspiracy charge in Count 1
rather than the charge in Count 2. However, the Government opposed Gibbs’s
request for resentencing because his case did not involve crafting an entirely new
6 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 7 of 15
sentence based on one erroneous count of conviction. The Government asserted it
was clear from the record that the sentencing court had imposed separate,
independent periods of confinement for each of Gibbs’s crimes, and therefore, a
sentencing reduction on Counts 1 and 2 would be inappropriate.
The district court vacated Gibbs’s Count 3 conviction. However, it
determined resentencing on Counts 1 and 2 was not necessary. In a written order,
the district court detailed its reasoning for that decision. The court stated it had
reviewed the record, including the sentencing transcript and PSI,2 and found that a
sentence of 240 months’ imprisonment on each count, served consecutively, was
appropriate and that anything less would undermine § 3553(a)(2)’s objectives.
Specifically, it found the 480-month sentence was appropriate based on the nature
and circumstances of the convictions, as Gibbs and codefendant Leggett had shot
and killed a guard during the robbery, as well as Gibbs’s history and
characteristics, including his mental health evaluation, prior criminal conduct, his
difficult childhood, and acts of kindness. Regarding the need to avoid sentencing
disparities, it noted that Leggett, who was also a shooter in the attempted robbery,
had received a total 480-month sentence. Unlike Gibbs, Leggett pled guilty and
did not go to trial. Leggett’s sentence was later reduced to 360 months’
2 The district judge presiding over the § 2255 motion was not the same district judge who imposed Gibbs’s original sentence. 7 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 8 of 15
imprisonment after a Rule 35 motion. After its review of the record and
consideration of the § 3553(a) factors, the district court concluded that Gibbs’s
original 480-month total sentence on Counts 1 and 2 was appropriate. However, it
added a new condition of five years of supervised release as to each count, to be
served concurrently.
II. DISCUSSION
A. Resentencing Hearing
If, pursuant to § 2255(b), a court concludes a motion to vacate, set aside, or
correct a sentence should be granted, it must follow a two-step process. Brown,
879 F.3d at 1235. First, it must vacate and set aside the judgment. Id. Second, it
must choose from among four remedies: (1) discharging the prisoner;
(2) resentencing the prisoner; (3) granting a new trial; or (4) correcting the
prisoner’s sentence. Id. A resentencing is a distinct remedy from a correction. Id.
at 1236. A correction is a “more limited remedy, responding to a specific error,”
and does not require a sentencing hearing. Id. at 1236 & n.3. A resentencing,
however, is “more open-ended and discretionary, something closer to beginning
the sentencing process anew” and requires a resentencing hearing with the
defendant present. Id.
To determine whether a resentencing hearing is necessary, the key question
is whether the sentence modification is a critical stage of the proceedings, such that
8 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 9 of 15
due process protects the defendant’s right to be present. Id. at 1236. Two
fact-intensive inquiries are required. Id. at 1238-40. First, a court must determine
whether the errors requiring the grant of relief undermine the sentence as a whole.
Id. at 1239. As to the first factor, we have noted that, “[i]f there is a chance that an
erroneous sentence on one count of conviction influenced the sentencing judge’s
decisions on other counts, then merely excising the mistaken sentence for one
count won’t put the defendant in the same position as if no error had been made,”
and a resentencing hearing, with the defendant present, may be required. Id.
Second, the court must determine whether it will “exercise significant
discretion in modifying the defendant’s sentence,” including whether it will
consider questions that it was not called upon to consider at the original sentencing
hearing. Id. at 1239-40. For example, a new hearing may be necessary if “a court
must exercise its discretion in modifying a sentence in ways it was not called upon
to do at the initial sentencing,” which may occur if the original sentencing court
did not reach certain issues because it imposed a sentence that no longer applies.
Id. at 1239. When both factors are present, a sentence modification is a critical
stage of the proceedings, and the defendant’s presence is required. Id. at 1240.
In Brown, we considered whether a court was required to resentence, rather
than correct a sentence, where there was only one count of conviction and the
defendant’s original sentence was set by the mandatory minimum under the Armed
9 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 10 of 15
Career Criminal Act (ACCA). Id. We held the district court’s failure to grant a
resentencing hearing when imposing a new sentence without the ACCA
enhancement under a new guideline range was an abuse of discretion because
(1) the ACCA enhancement undermined the defendant’s sentence as a whole
because it was his “one and only count of conviction”; (2) the court failed to
exercise the necessary discretion in determining the new sentence considering that
the original sentence had been based solely on the mandatory minimum under the
ACCA and the court had not previously considered the information in the PSI and
the 18 U.S.C. § 3553(a) factors; and (3) the district court provided no explanation
for the sentence, which amounted to an upward variance from the new guideline
range that was “a clear act of open-ended discretion.” Id. at 1240-41.
Conversely in Thomason, we held the district court did not abuse its
discretion in denying a resentencing hearing after granting the defendant’s motion
to vacate based on an error under Johnson that affected four of his eight counts of
conviction and did not result in a change to his guideline range. United States v.
Thomason, 940 F.3d 1166, 1168-69 (11th Cir. 2019). Citing to Brown, we stated
“[a] district court need not conduct a full resentencing when correcting the error
does not change the guideline range and the district court does not make the
sentence more onerous.” Id. at 1172. We held the Johnson error did not
undermine the defendant’s sentence as a whole or change his guideline range, and
10 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 11 of 15
the district court imposed a less onerous sentence. Id. at 1173-74. We also
concluded the district court had not exercised significant discretion where the
district court considered evidence of the defendant’s post-sentencing rehabilitative
conduct because the court had given the parties notice and an opportunity to make
written submissions regarding that evidence. Id. at 1174.
The district court did not err when it declined to hold a formal resentencing
hearing. As to the first question in Brown, the Davis error did not undermine
Gibbs’s Count 1 and Count 2 sentences, as the original sentencing court’s decision
to sentence him to consecutive 20-year sentences on those counts was distinct from
the life sentence that he received on his now-vacated count. Even if Gibbs had
never been convicted on the now-vacated count, his Guidelines calculation would
not have resulted in a different imprisonment range, given that the cross-reference
at U.S.S.G. § 2B3.1(c)(1) still would have applied to yield the same Guidelines
sentence of life imprisonment, notwithstanding the 20-year statutory maximum on
his 2 remaining counts of conviction. 18 U.S.C. § 1951(a) (providing the statutory
maximum sentence for a violation of the statute is 20 years’ imprisonment);
U.S.S.G. §§ 2A1.1, 2B3.1(c)(1) (2004, 2018) (providing if a victim was killed
during the commission of an 18 U.S.C. § 1951 violation and would constitute
murder under 18 U.S.C. § 1111, a cross-reference to first-degree murder is applied,
making the base offense level 43, yielding a Guidelines sentence of life
11 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 12 of 15
imprisonment); U.S.S.G. § 5G1.2(d) (providing where a defendant is convicted of
multiple offenses, if the sentence imposed on the count with the highest statutory
maximum is less than the total punishment, the sentence on the other counts must
run consecutively to the extent necessary to produce a sentence that is equal to the
total punishment); see also United States v. Magluta, 418 F.3d 1166, 1185 (11th
Cir. 2005) (stating the proper application of § 5G1.2(d) requires that sentences run
consecutively to the extent necessary to reach the punishment range set by the
Guidelines, even though they are advisory).
As to the second question in Brown, the district court was not called to
exercise its discretion in a way not required at the initial sentencing. Like in
Thomason, the error did not change the guideline range and the district court did
not make the sentence more onerous. See Thomason, 940 F.3d at 1172. The
district court reimposed the same term of imprisonment on the two remaining
counts and added a five-year term of supervised release. We conclude the addition
of a five-year term of supervised release to the original sentence is not such an act
of significant discretion to necessitate a resentencing hearing under the facts of this
case, when the original life sentence made a term of supervised release irrelevant.
Accordingly, we affirm as to this issue.
B. Post-sentencing rehabilitation
12 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 13 of 15
We determine whether the district court committed any significant
procedural error by, among other things, “failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). A district court
is not required to state on the record that it has explicitly considered or discussed
each § 3553(a) factor. United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir.
2009). The district court’s acknowledgment that it considered the § 3553(a)
factors and the defendant’s arguments is sufficient. Id.
Section 3553(a) provides that the district court must impose a sentence that
is “sufficient, but not greater than necessary” to: (1) reflect the seriousness of the
offense, promote respect for the law, and provide just punishment for the offense;
(2) afford adequate deterrence to criminal conduct; (3) protect the public from
further crimes of the defendant; and (4) provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in
the most effective manner. 18 U.S.C. § 3553(a)(2)(A)–(D). In addition, the court
must consider: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the kinds of sentences available; (3) the
guideline sentencing range; (4) any pertinent policy statements; (5) the need to
avoid unwarranted sentencing disparities; and (6) the need to provide restitution to
13 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 14 of 15
any victims. Id. § 3553(a)(1), (3)–(7). Although the district court is required to
consider all of the § 3553(a) factors, it “is permitted to attach great weight to one
factor over others.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009)
(quotation marks omitted).
Prior to Pepper v. United States, 562 U.S. 476 (2011), the Guidelines
included a policy statement stating that post-sentencing rehabilitative efforts were
not an appropriate basis for a downward departure when resentencing a defendant
because, in relevant part, doing so would inequitably benefit only those who
obtained the opportunity to be resentenced de novo, see U.S.S.G. § 5K2.19 (2004).
In Pepper, however, the Supreme Court held a district court may consider
post-sentencing rehabilitation after an appellate court has vacated and remanded
the defendant’s initial sentence, noting evidence of post-sentencing rehabilitation
“may be highly relevant to several of the sentencing factors that Congress has
specifically instructed district courts to consider.” Pepper, 562 U.S. at 499-500.
Consequently, the Guidelines removed the policy statement in § 5K2.19. See
U.S.S.G. § 5K2.19, Amend. 768 (effective Nov. 1, 2012). We have since
recognized the Supreme Court left what consideration, if any, to give a defendant’s
post-sentencing rehabilitation to the district court’s discretion. United States v.
Doyle, 857 F.3d 1115, 1121 (11th Cir. 2017).
14 USCA11 Case: 20-14188 Date Filed: 08/27/2021 Page: 15 of 15
Gibbs’s sentence is procedurally reasonable. The district court’s decision to
not accept evidence of his post-sentencing rehabilitation was within its discretion,
as it was not required under Pepper or our precedent to consider such evidence.
Pepper, 562 U.S. at 499-500; Doyle, 857 F.3d at 1121. Furthermore, the district
court adequately explained its sentencing decision by weighing several of the
§ 3553(a) factors and considering relevant facts. See Docampo, 573 F.3d at 1100.
Despite not holding a resentencing hearing, the district court’s order was thorough
in reviewing the record, and the district court considered several of the § 3553(a)
factors. It considered the nature and circumstances of the convictions, specifically
that Gibbs and Leggett had shot and killed a guard during the robbery, as well as
Gibbs’s history and characteristics. The district court also considered the need to
avoid sentencing disparities with codefendant Leggett. Additionally, the district
court was entitled to give more weight to the nature of the offense than Gibbs’s
most current personal characteristics or potential evidence regarding his post-
sentencing rehabilitation. See Shaw, 560 F.3d at 1237.
Accordingly, we affirm.
AFFIRMED.