Rose v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICHARD WALLY ROSE,

Movant,

vs. Case No.: 3:11-cv-393-BJD-JRK

3:08-cr-72-HLA-JRK

UNITED STATES OF AMERICA

Respondent.

/

ORDER

This case is before the Court on remand from the United States Court of

Appeals for the Eleventh Circuit. Rose v. United States, 844 F. App’x 283 (11th

Cir. 2021); (Civ. Doc. 98, USCA Opinion; Civ. Doc. 102, Mandate).1 Rose moves

to be present at a resentencing hearing so that he may have the opportunity for

allocution. (Civ. Doc. 100, Motion). By implication, Rose also moves the Court

to hold a resentencing hearing.

In 2019, the Court granted Rose’s motion under 28 U.S.C. § 2255 to vacate

his Armed Career Criminal Act (ACCA) sentence based on Johnson v. United

States, 135 S. Ct. 2551 (2015). (Civ. Doc. 87, Order Granting § 2255 Motion). In

doing so, the Court reduced Rose’s term of imprisonment from 211 months to

1 Citations to the record in the criminal case, No. 3:08-cr-72-HLA-JRK, will be denoted

“Crim. Doc. __.” Citations to the record in the civil 28 U.S.C. § 2255 case, No. 3:11-cv-393-BJD-

JRK, will be denoted “Civ. Doc. ___.”

120 months. Id. at 16. However, the Court left unchanged his 5-year term of

supervised release. Id. Rose appealed, challenging the continued imposition of

the 5-year term of supervised release. On appeal, the Eleventh Circuit

explained that with the ACCA enhancement no longer in place, Rose’s

conviction for possession of a firearm by a convicted felon became a Class C

felony. Rose, 844 F. App’x at 284; see also 18 U.S.C. §§ 3559(a)(3), 3583(b)(2).

So, whereas Rose’s conviction formerly qualified as a Class A felony, which is

subject to a 5-year maximum term of supervised release, see id., §§ 3559(a)(1),

3583(b)(1), his offense now is subject to a 3-year maximum term of supervised

release, Rose, 844 F. App’x at 284. Accordingly, the Court of Appeals held that

the Court “exceeded its authority in reimposing the five-year term of supervised

release” and remanded “for further proceedings consistent with this opinion.”

Id.

In his Motion, Rose interprets the Eleventh Circuit’s opinion as requiring

the Court to conduct a full resentencing hearing. Motion at 1. He requests that

the Court allow him to be present at a resentencing hearing to give him an

opportunity for allocution. Rose argues that the Eleventh Circuit’s decision in

United States v. Brown, 879 F.3d 1231 (11th Cir. 2018), requires his presence

at such a hearing.

Rose is mistaken. As a threshold matter, the opinion remanding the case

does not require the Court to conduct a full resentencing hearing. Rather, it

calls for the Court to correct Rose’s erroneous term of supervised release

through “proceedings consistent with this opinion.” Rose, 844 F. App’x at 284.

When a defendant’s judgment is vacated under 28 U.S.C. § 2255, as Rose’s

judgment was here, the district court has a choice of “four distinct remedies: (1)

discharge the prisoner; (2) resentence the prisoner; (3) grant the prisoner a new

trial; or (4) correct the prisoner’s sentence.” Brown, 879 F.3d at 1235 (citing 28

U.S.C. § 2255(b)). A “correction” and a “resentencing” are distinct remedies,

with “a ‘correction’ being a more limited remedy, responding to a specific error;

and a ‘resentencing’ being more open-ended and discretionary, something closer

to beginning the sentencing process anew.” Id. at 1236. A district court’s choice

of remedy is reviewed for abuse of discretion. Id. at 1235.

The Eleventh Circuit “has recognized that ‘[t]he established right to be

present for sentencing—or even for resentencing under certain circumstances—

... does not translate into a right to be present whenever judicial action

modifying a sentence is taken.’” Id. at 1237 (quoting United States v. Jackson,

923 F.2d 1494, 1496 (11th Cir. 1991)). Instead, “two inquiries emerge to guide

… whether a defendant is entitled to a resentencing hearing when a change to

his sentence is required as a result of his § 2255 motion.” Id. at 1239.

First, did the errors requiring the grant of habeas relief undermine the

sentence as a whole? Second, will the sentencing court exercise

significant discretion in modifying the defendant’s sentence, perhaps on

questions the court was not called upon to consider at the original

sentencing? When these factors are present, a District Court’s sentence

modification qualifies as a critical stage in the proceedings, requiring a

hearing with the defendant present.

Id. at 1239–40 (citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). Notably,

the Eleventh Circuit observed:

Resentencings are various in kind and many are very narrow. At one

extreme, the resentencing ordered may be as unconstrained and open-

ended as an initial sentencing; but at the other extreme, a remand may

be so focused and limited that it involves merely a technical revision of

the sentence dictated by the appeals court and calls for no formal

proceeding—say, modifying the judgment to cut back to its legally

permitted length a supervised release term that exceeded what the

statute permits.

Id. at 1237 (emphasis added) (quoting United States v. Bryant, 643 F.3d 28, 32

(1st Cir. 2011)).

Applying Brown, the Court finds that a resentencing hearing is not

required to correct Rose’s supervised release term. First, the Eleventh Circuit’s

opinion remanding the case does not undermine Rose’s sentence as a whole.2

Rather, it concerns only the length of Rose’s term of supervised release. See

Rose, 844 F. App’x at 284. Second, the Eleventh Circuit’s opinion does not call

for this Court to “exercise significant discretion in modifying the defendant’s

sentence.” Brown, 879 F.3d at 1239–40. The only issue to be addressed on

remand is “cut[ting] back to its legally permitted length a supervised release

2 When the Court granted Rose’s § 2255 motion and reduced his term of imprisonment

from 211 months to 120 months, it did so without a resentencing hearing as well. That issue

was not addressed in the Eleventh Circuit’s opinion and it is not the subject of the remand.

Moreover, if Rose objected to the Court reducing his sentence without a resentencing hearing,

he could have raised that issue in his notice of appeal (construed as a motion for a certificate

of appealability (Civ. Doc. 90)), but he did not.

term that exceeded what the statute permits.” Id. at 1237 (quoting Bryant, 643

F.3d at 32). Indeed, this is the very type of correction that the Eleventh Circuit

identified as not requiring any formal proceeding. Id.; see also United States v.

Gibbs, 403 F. App’x 82, 83–84 (7th Cir. 2010) (district court was not required to

hold a resentencing hearing to reduce the term of supervised release).

And correcting Rose’s term of supervised release does not require the

Court to answer any “questions [it] was not called upon to consider at the

original sentencing.” Brown, 879 F.3d at 1240. The Court originally imposed

the maximum term of supervised release, not a mandatory minimum. Cf. id. at

1239 (observing that if the original sentencing court imposed a mandatory

minimum sentence that no longer applies, then a resentencing hearing may be

the first opportunity the defendant has to meaningfully challenge the

information affecting the judge’s sentencing decision (citing Jackson, 923 F.2d

at 1496–97)); cf. also id. at 1240 (the need to conduct a resentencing hearing in

Brown’s case was heightened because the district court originally imposed the

mandatory minimum sentence with little or no discussion of Brown’s

presentence investigation report or the 18 U.S.C. § 3553(a) factors). Rose’s

original 5-year term of supervised release already reflects that the Court, in

exercising its discretion, determined that the maximum period of supervised

release was warranted. Now that the maximum term of supervised release has

been lowered, it stands to reason that the Court would impose no less than the

new maximum term of 3 years. Rose offers no argument to the contrary.

One final note: Rose requests the opportunity to be present at a

resentencing hearing for the purpose of allocution. Motion at 1. But Rose, who

represented himself at sentencing, already received that opportunity. (See

generally, Crim. Doc. 139, Sentencing Transcript). The Eleventh Circuit’s

opinion requires the Court merely to revise an isolated non-incarcerative aspect

of his sentence, and it does not call for the Court to exercise significant

discretion. It therefore does not qualify as a critical stage of the proceedings at

which Rose’s presence is required. See Brown, 879 F.3d at 1239-40.

Accordingly, it is hereby ORDERED:

1. Petitioner Richard Wally Rose’s term of supervised release is REDUCED

from five years to three years. The judgment (Crim. Doc. 118) is

amended accordingly.

2. Rose’s Motion to be Present at Resentencing (Civ. Doc. 100) is DENIED.

DONE AND ORDERED at Jacksonville, Florida this 8th day of June, 2021.

R__| JQ

BRIAN J. DAV! :

United States District Judge

Ie 19

C:

Counsel and parties of record

United States Probation Office