United States v. Frank Richardson
United States v. Frank Richardson
Opinion
On his second appeal to this court, Defendant-Appellant Frank Richardson asks
*421
us to overturn his conviction under
Without determining whether § 924(c) 's residual clause is unconstitutionally vague, we affirm Richardson's conviction under § 924(c) 's force clause, which supplies a separate definition of crime of violence. We also conclude that our remand limited the district court's inquiry to Johnson -related issues and that the district court properly refrained from considering Richardson's other arguments about alleged deficiencies in the indictment and the trial court's jury instructions-arguments that he could have raised in his first appeal but did not. Finally, we hold that Richardson's sentence is procedurally and substantively reasonable.
For the reasons stated below, we AFFIRM the district court's decision to reinstate Richardson's original sentence.
I.
Frank Richardson participated in a series of armed robberies of electronics stores in and around Detroit, Michigan, between February and May 2010. At least one robber used a gun during each robbery. Although Richardson planned each heist and served as a lookout, he never entered a store while a robbery occurred.
United States v. Richardson
,
In June 2013, a jury convicted Richardson on five counts of aiding and abetting Hobbs Act robbery,
While Richardson's appeal was pending, the Supreme Court decided
Johnson
. That decision held that the definition of the term, violent felony, in the Armed Career Criminal Act's residual clause, is unconstitutionally vague.
Johnson
,
*422 United States v. Richardson , Nos. 13-2655, 13-2656, slip op. at 2 (6th Cir. Aug. 29, 2016).
In September 2017, the district court held a resentencing hearing and reinstated Richardson's original sentence. Richardson appeals that decision.
II.
A.
To start, we must interpret our order, which remanded the case to the district court for reconsideration of Richardson's sentence after
Johnson
. We interpret a remand de novo.
United States v. Moore
,
Remands can be limited or general. A limited remand "explicitly outline[s] the issues to be addressed by the district court and create[s] a narrow framework within which the district court must operate."
Campbell
,
A remand is presumptively general.
United States v. Woodside
,
Our order's plain language shows that we remanded the matter for the limited purpose of determining whether Richardson's sentence is constitutional after
Johnson
. The order's penultimate sentence explains the basis for the remand: "Because any
Johnson
-based challenges to his sentence that Richardson may have are entirely novel, it is appropriate to allow the district court to consider
those challenges
in the first instance."
Richardson
, slip op. at 2 (emphasis added). The order concludes, "Richardson's sentence is hereby VACATED, and we REMAND to the district court for reconsideration of Richardson's
*423
sentence in light of
Johnson v. United States
, --- U.S. ----,
And the context bolsters the conclusion that we issued a limited remand. The order acknowledges that Richardson raised several issues on his first appeal, stating, "we issued an opinion and judgment rejecting those arguments and affirming Richardson's conviction and sentence in full." Richardson , slip op. at 1. The only intervening event between our 2015 decision affirming Richardson's conviction and sentence and our 2016 order was the Supreme Court's decision in Johnson . But Johnson does not affect any of the alleged errors related to Richardson's indictment and the trial court's jury instructions. Thus, the order does not identify any of Richardson's other alleged errors as issues for consideration on remand.
Because this court's order operated as a limited remand, it narrowed the district court's focus to determining whether Richardson's sentence is constitutional after Johnson . The order foreclosed the district court from considering any other issue.
B.
Richardson advances three arguments related to his conviction and sentence under § 924(c) that are unrelated to the Supreme Court's decision in Johnson . He argues that the trial court (1) erred in instructing the jury on the necessary elements to convict under § 924(c) ; (2) erroneously instructed the jury about the necessary predicate offenses underlying the § 924(c) counts; and (3) added two years to his sentence under § 924(c) for having "brandished" a firearm, even though he was charged with the lesser "use-and-carry" offense. These errors are not properly before this court.
First, as noted above, our order limited the district court's inquiry to determining whether § 924(c) is constitutional under
Johnson
. When we issue a limited remand, the district court is "bound to the scope of [that] remand."
Campbell
,
Richardson faces a second insurmountable hurdle wholly apart from the scope of the remand: he forfeited those arguments by not raising them on his first appeal to this court. We recently addressed a similar situation in
Patterson,
in which the defendant appealed his criminal conviction to this court.
The district court declined to consider those arguments, and we affirmed that decision. We held first, like here, that the remand was limited. But we also noted that the defendant "face[d] another problem,
*424
separate and apart from the scope of our remand."
As a last resort, Richardson asks this court to consider his arguments under the guise of an ineffective assistance of counsel claim. But again, because Richardson's ineffective assistance of counsel argument falls outside the scope of our limited remand, he cannot raise the argument on this appeal.
See
United States v. Knight
,
In addition, courts almost always address ineffective assistance of counsel arguments when the defendant brings a post-conviction motion to vacate under
C.
Next, we consider the central issue properly before this court: whether the Supreme Court's decision in
Johnson
has any effect on Richardson's sentence. The Armed Career Criminal Act-the statute at issue in
Johnson
-creates no distinct criminal offense. Rather, the Act imposes a more severe sentence on a defendant convicted of being a felon in possession of a firearm-but only if the defendant has three or more prior convictions for a violent felony.
Richardson, however, did not receive a sentence enhancement under the Armed Career Criminal Act and does not challenge his conviction on one count of being a felon in possession of a firearm. Instead, his appeal concerns his conviction under § 924(c). That statute creates a
separate offense
for using or possessing a firearm in connection with a crime of violence.
See
Dean v. United States
, --- U.S. ----,
After the Supreme Court decided
Johnson
, this court rejected the argument that § 924(c) 's residual clause is unconstitutionally vague. In
United States v. Taylor
, we held that § 924(c) 's residual clause "is considerably narrower than the statute invalidated by the Court in
Johnson
...."
In
Shuti v. Lynch
, we held that the Immigration and Nationality Act's definition of the term, crime of violence, is unconstitutionally vague.
Richardson contends that
Dimaya
questions the distinction that
Shuti
drew between § 924(c) and § 16(b). Indeed, the Supreme Court stated that § 16(b) is a criminal statute and thus declined to apply a "more permissive form of the void-for-vagueness doctrine" that is normally applied to non-criminal statutes.
Id.
at 1213. And the Court stated that § 16(b) 's residual clause could survive only if "it is materially clearer than its now-invalidated ACCA counterpart."
Id.
Thus, Richardson argues that
Dimaya
compels this court to hold that § 924(c) 's residual clause is also unconstitutionally vague. At least three circuit courts have already come to that conclusion.
United States v. Salas
,
Nevertheless, we leave the continuing viability of
Taylor
to another day. In addition to the residual clause, § 924(c) supplies a separate definition of the term, crime of violence, in the force clause.
Here, the government argues that Richardson's conduct satisfies the force clause. Richardson, by contrast, contends that aiding and abetting Hobbs Act robbery does not satisfy the force clause, meaning that his conviction is sustainable only under the residual clause. Although we have not addressed whether aiding and abetting Hobbs Act robbery is a crime of violence under the force clause, we have held that the principal offense of Hobbs Act robbery is a crime of violence under the force clause.
United States v. Gooch
,
Although Richardson acknowledges our holding in
Gooch
, he argues that his conviction for
aiding and abetting
Hobbs Act robbery is distinct from a conviction for the principal offense and is not crime of violence under the force clause. We disagree. There is no distinction between aiding and abetting the commission of a crime and committing the principal offense. Aiding and abetting is simply an alternative theory of liability; it is "not a distinct substantive crime."
United States v. McGee
,
Moreover, the First, Tenth, and Eleventh Circuits have held that aiding and abetting Hobbs Act robbery is a crime of violence under § 924(c)(3)(A).
See
United States v. Garcia-Ortiz
,
Because an aider and abettor is responsible for the acts of the principal as a matter of law, an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery. And because the substantive offense of Hobbs Act robbery "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," ... then an aider and abettor of a Hobbs Act robbery necessarily commits a crime that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another."
Colon
,
We agree with the First, Tenth, and Eleventh Circuits and conclude that Richardson's conviction for aiding and abetting Hobbs Act robbery satisfies the force clause. Thus, we affirm his conviction under § 924(c).
D.
Richardson alleges that the district court's decision to reinstate his original sentence is both procedurally and substantively unreasonable. Richardson does not distinguish the court's alleged procedural
*427
errors from its substantive errors. Rather, he levies a general objection that the district court failed to articulate its reasoning for rejecting his arguments and reinstating his original sentence. Richardson also alleges specific errors with the sentence, including that the district court (1) overlooked his argument about the calculation of his base offense level and criminal history scores; (2) ignored his post-sentencing conduct, which it was permitted to consider under
Pepper v. United States
,
A sentence is procedurally reasonable when the district court "listened to each argument, considered the supporting evidence, was fully aware of the defendant's circumstances, and took them into account in sentencing him."
United States v. Vonner
,
Here, the district court ultimately decided to reinstate Richardson's original sentence. The court did not issue a written decision on remand but explained at the hearing that it "has reviewed the very extensive briefs, which is persuasive in many ways, which both the government and the defendant has filed in support of their positions." (R. 86, Hr'g Tr. at PageID #364.) The court subsequently heard argument from Richardson's counsel and the government's counsel, the latter of which reminded the district court that the limited remand narrowed the court's inquiry to Johnson -related arguments. And then the court resentenced Richardson.
Richardson accuses the district court of failing to address his objections to his base offense level and criminal history scores, as calculated in his revised presentence report. The district court did not err by declining to consider these objections. First, our limited remand gave the court jurisdiction to consider one issue: whether Richardson's sentence was valid after Johnson . Our remand did not open the door to new arguments about sentencing issues unrelated to Johnson . Because Richardson's arguments about his base offense level and criminal history scores do not relate to Johnson , the district court properly declined to consider those arguments.
Separately, we note that the base offense level and criminal history scores in the presentence report before the district court at resentencing are identical to the scores from Richardson's October 2013 presentence report, which the district court used to impose the original sentence. Richardson did not object to the calculation of his base offense level and criminal history scores in his October 2013 sentencing memorandum to the district court, nor did he raise the issue on his first appeal to this court. Accordingly, Richardson has forfeited this argument.
*428
Finally, Richardson alleges that the district court committed substantive error by failing to adhere to the Supreme Court's decisions in
Pepper
and
Dean
. First, we consider Richardson's argument that the district court did not consider his post-sentencing rehabilitation, as it was allowed to do under
Pepper
. Here again, our limited remand foreclosed the district court from considering non-
Johnson
issues, such as Richardson's post-sentencing conduct. Indeed, the Supreme Court in
Pepper
explained that it did not intend "to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding."
Pepper
,
Next, we consider Richardson's argument that the district court failed to address his request for a reduced sentence for his non-924(c) convictions, as
Dean
permits. This argument suffers from the same flaw as Richardson's
Pepper
argument: because we issued a limited remand, the district court could not consider issues unrelated to
Johnson
.
Dean
concerns the district court's discretion when sentencing a defendant convicted of § 924(c) and a predicate crime of violence. A conviction under § 924(c) carries a mandatory sentence, which runs consecutively to the sentence for the predicate crime of violence.
Dean
,
E.
Lastly, we reject Richardson's final argument that the district court deprived him of his right to allocute fully at the post-remand sentencing hearing. We review an allegation of the complete denial of a right to allocute de novo.
United States v. Wolfe
,
At the close of the sentencing hearing, the district court allowed Richardson to speak from the podium and address the court. Richardson immediately contested the underlying merits of his conviction:
The government attorney said the sentence that was imposed the first time was appropriate. Well, you got a guy fixin' to get out next year who went in and committed these robberies. I didn't commit one robbery. No witness, no civilian witness identified me. Even my co-defendant said I never committed a robbery.
*429 They committed a robbery, but he fixin' to get out next year.
(R. 86, Hr'g Tr. at PageID #373.) At this point, the district court interrupted Richardson to explain that the jury had already determined his guilt, but it gave Richardson another opportunity to speak. Yet again, Richardson returned to the merits of his conviction, noting that "district courts have said that conspiracy to commit Hobbs Act robbery is not a crime of violence." ( Id. ) The district court again interrupted Richardson and ended his allocution. Richardson's counsel raised no objections to this termination.
There is no constitutional right to allocution.
Pasquarille v. United States
,
Because the district court allowed Richardson to allocute when it did not have to, it did not err in ultimately terminating Richardson's allocution after he twice sought to contest the merits of his underlying conviction. Thus, we conclude that Richardson's sentence was procedurally and substantively sound.
***
We AFFIRM the district court's decision to reinstate Richardson's original 1,494-month sentence.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Frank RICHARDSON, Defendant-Appellant.
- Cited By
- 21 cases
- Status
- Published