United States v. Hunter

646 F.3d 372, 2011 U.S. App. LEXIS 10440, 2011 WL 2020709
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 25, 2011
Docket10-5978
StatusPublished
Cited by13 cases

This text of 646 F.3d 372 (United States v. Hunter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hunter, 646 F.3d 372, 2011 U.S. App. LEXIS 10440, 2011 WL 2020709 (6th Cir. 2011).

Opinions

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This is Christopher Hunter’s second appeal. In our prior opinion we reversed Hunter’s conviction and sentence for violating 18 U.S.C. § 924(c)(1) because the proceedings at trial constructively amended his indictment. However, we affirmed Hunter’s other convictions and the thirty-year sentence he received for those counts. On remand the United States agreed to not pursue the section 924(c) charge. The district court vacated the sentence for that count by written order without allowing Hunter to personally appear or re-allocute. Hunter appeals arguing that the district court erred by not conducting a plenary resentencing hearing. However, because our initial opinion limited the district court to considering only Hunter’s section 924(c) [374]*374charge, which the United States declined to pursue, there was no sentencing to be done. We therefore AFFIRM.

I.

This case is the subject of a prior appeal. See United States v. Hunter, 558 F.3d 495 (6th Cir.2009). The facts of this case are laid out in greater detail in that opinion and we highlight here only those most pertinent to the resolution of this issue.

A jury convicted Hunter of possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846, possession of a firearm in furtherance of a drug crime, in violation of 18 U.S.C. § 924(c)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Hunter to thirty years of imprisonment for the drug counts and felon-in-possession count. The district court also imposed a mandatory, five-year term of imprisonment for Hunter’s section 924(c) conviction.

Hunter raised a host of issues on appeal and we found that most were not meritorious. However, we vacated his section 924(c) conviction and remanded the case to the district court for further proceedings with respect to that charge. Specifically, our initial remand order in this case, 558 F.3d at 508, read as follows:

For the foregoing reasons, we REVERSE Hunter’s conviction and sentence for violating 18 U.S.C. § 924(c)(1), but we AFFIRM Hunter’s other convictions and sentences. Accordingly, we REMAND for such further proceedings consistent with this opinion as are necessary.

On remand the United States informed the district court that it did not intend to proceed on the section 924(c) charge. The district court held that our opinion limited the remand to only the section 924(c) charge and, because we vacated Hunter’s conviction and the United States declined to pursue that charge, “there [was] nothing left for the Court to consider in a re-sentencing.” Therefore, in a written order, the district court left Hunter’s thirty-year sentence, which this Court had affirmed, intact and vacated the consecutive five-year sentence it had imposed for the section 924(c) conviction.

II.

Initially, we must determine the scope of our prior remand in this matter. This court reviews the scope of a remand de novo. United States v. Orlando, 363 F.3d 596, 600 (6th Cir.2004). Courts of appeal may order limited or general remands. See 28 U.S.C. § 2106. “A limited remand must explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate.” United States v. Obi, 542 F.3d 148, 154 (6th Cir.2008) (citation and internal quotation marks omitted). “General remands, in contrast, give district courts authority to address all matters as long as remaining consistent with the remand.” Id. (citation omitted); see United States v. Garcia-Robles, 640 F.3d 159, 165-66 (6th Cir.2011).

When a court simply vacates a sentence and remands for “resentencing,” or “resentencing consistent with this opinion,” that will typically be a general remand. See, e.g., Garcia-Robles, 640 F.3d at 164-65; Obi 542 F.3d at 154; United States v. Moore, 131 F.3d 595, 598 (6th Cir.1997) (Moore III). This Court very recently held that “upon general remand, [375]*375when a sentence has been vacated on direct appeal, the defendant is entitled to a resentencing hearing where he may exercise the right to be present and allocute as provided by Rules 32 and 43 of the Federal Rules of Criminal Procedure.” Garcia-Robles, 640 F.3d at 164. However, by affirming Hunter’s other convictions and sentences, our earlier opinion specifically limited the scope of the remand to Hunter’s section 924(c) charge and the separate sentence he received on that count.

We addressed a very similar issue in Moore III. There, the defendant initially appealed his conviction and sentence for possession of marijuana with intent to distribute and for use of firearms in connection with drug trafficking in violation of section 924(c)(1). United States v. Moore, 70 F.3d 1273, No. 94-6591, 1995 WL 704162, at *1 (6th Cir. Nov.28, 1995) (Moore I). We affirmed the defendant’s convictions and sentences. However, we subsequently granted Moore’s petition for rehearing because the Supreme Court endorsed a narrower definition of use of a firearm under section 924(c)(1) than we had applied previously. United States v. Moore, 76 F.3d 111, 114 (6th Cir.1996) (Moore II). In light of this new authority, we vacated the defendant’s section 924(c) conviction and remanded the matter to the district court to determine whether sufficient evidence supported his conviction under this section in light of the Supreme Court’s then-recent decision. Id. However, we adhered to our previous decision in all other respects. Specifically, the remand order in that case, id., stated:

We therefore VACATE Moore’s section 924c(c)(l) conviction and REMAND for further proceedings, in which both parties can have the opportunity to focus on the facts and law relevant to proving that Moore used or carried a firearm during and in relation to his drug trafficking offense.

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Bluebook (online)
646 F.3d 372, 2011 U.S. App. LEXIS 10440, 2011 WL 2020709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hunter-ca6-2011.