             Case: 16-16207    Date Filed: 05/30/2018   Page: 1 of 9


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                           Nos. 16-16207; 17-13066
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 9:05-cr-80042-JIC-1,
                             9:16-cv-806662-JIC



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

WILLIAM G. HERNANDEZ,
                                                            Defendant-Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                         ________________________

                                 (May 30, 2018)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      William Hernandez, a federal prisoner, appeals the district court’s decision

to correct his sentence without conducting a full resentencing hearing after the
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court granted his 28 U.S.C. § 2255 motion to vacate or correct his sentence in light

of Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). After careful

review, we affirm.

      In 2005 Hernandez pled guilty to three counts of possession with intent to

distribute crack cocaine and one count of distribution of cocaine, 21 U.S.C.

§ 841(a)(1), one count of possession of a firearm by a convicted felon, 18 U.S.C.

§ 922(g)(1), and one count of possession of a firearm in connection with a drug-

trafficking crime, 18 U.S.C. § 924(c)(1)(A). At his sentencing, the district court

determined that he qualified as an armed career criminal under the Armed Career

Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). The ACCA enhancement mandated

a sentence of at least fifteen years for the § 922(g)(1) offense.       Without the

enhancement, the statutory maximum was ten years.

      The ACCA enhancement, however, had no effect on Hernandez’s guideline

range. That range was determined under the career-offender guideline, U.S.S.G.

§ 4B1.1, specifically under § 4B1.1(c). Subsection (c) governs the calculation of

the guideline range for a career-offender defendant who is convicted of violating

§ 924(c). The district court calculated a guideline range of 262 to 327 months of

imprisonment based on the table in § 4B1.1(c)(3). Ultimately, Hernandez was

sentenced to concurrent 202-month sentences for the drug offenses and the




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§ 922(g)(1) offense, plus a consecutive 60-month sentence for the § 924(c) offense,

for a total, low-end guideline sentence of 262 months.

      In 2016 Hernandez filed a motion to vacate or correct his sentence under 28

U.S.C. § 2255. He said that, in light of Johnson, he had been illegally sentenced

under the ACCA. The district court agreed and granted his motion. Then, without

holding a hearing, the court reduced his § 922(g)(1) sentence from 202 months to

the statutory maximum of 120 months. But the court left the remaining sentences

unchanged, reasoning that the ACCA error had no effect on them. As a result,

Hernandez’s total sentence remained at 262 months. Hernandez now appeals.

      In an appeal from a § 2255 proceeding, we review legal issues de novo.

United States v. Brown, 879 F.3d 1231, 1234 (11th Cir. 2018). We review the

district court’s choice of § 2255 remedy for an abuse of discretion. Id. at 1235.

“[W]hen employing an abuse-of-discretion standard, we must affirm unless we

find that the district court has made a clear error of judgment, or has applied the

wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.

2004) (en banc).

      Section 2255 allows a federal prisoner to collaterally attack his sentence on

the grounds, among others, that the sentence “was imposed in violation of the

Constitution or laws of the United States” or “was in excess of the maximum

authorized by law.” 28 U.S.C. § 2255(a). When a district court grants a § 2255


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motion, it must do two main things. Brown, 879 F.3d at 1235. First, it “must

vacate and set the judgment aside.” Id. (quotation marks omitted). Second, it

“must choose from among 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.” Id. The terms “resentence” and “correct” define distinct

remedies. Id. at 1236. A “correction” is “a more limited remedy, responding to a

specific error,” and does not require a resentencing hearing. Id. at 1236 & n.3. A

“resentencing,” in contrast, is “more open-ended and discretionary, something

closer to beginning the sentencing process anew,” and requires a resentencing

hearing at which the defendant has the right to be present. Id.

      Brown sets out the framework for deciding when a resentencing hearing

must be held after the grant of a § 2255 motion. At bottom, the critical question is

whether the sentence modification qualifies as a critical stage of the proceedings,

such that due process guarantees the defendant’s right to be present. Id. at 1236

(citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). Two inquiries guide that

determination: “First, did the errors requiring the grant of habeas relief undermine

the sentence as a whole?”; and “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?” Id. at 1239–

40. These inquiries are “fact-intensive.” See id. at 1238. When these factors are


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present, a sentence modification qualifies as a critical stage of the proceedings, and

a resentencing hearing with the defendant present is required. Id. at 1240.

      As for the first inquiry, a resentencing hearing may be required “[i]f there is

a chance that an erroneous sentence on one count of conviction influenced the

sentencing judge’s decisions on other counts.” Id. at 1239. The general rule is that

sentences on multiple counts are “considered as part of a single sentencing

package.” Id. This reflects an understanding that, “especially in the guidelines era,

sentencing on multiple counts is an inherently interrelated, interconnected, and

holistic process which requires a court to craft an overall sentence—the ‘sentence

package’—that reflects the guidelines and the relevant § 3553(a) factors.” United

States v. Fowler, 749 F.3d 1010, 1015 (11th Cir. 2014). So if there is a chance the

error undermined the sentence as a whole, resentencing may be necessary because

“merely excising the mistaken sentence for one count won’t put the defendant in

the same position as if no error had been made.” Brown, 879 F.3d at 1239.

      As for the second inquiry, a resentencing hearing may be necessary “when a

court must exercise its discretion in modifying a sentence in ways it was not called

upon to do at the initial sentencing.” Id. That may occur, for example, if the

original sentencing court did not reach certain issues because it “imposed a

mandatory minimum sentence that no longer applies.” See id. With no applicable

mandatory minimum, the court may need to exercise its discretion—by resolving


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guideline application issues or addressing the 18 U.S.C. § 3553(a) factors—in

ways that were unnecessary at the original sentencing. See id. at 1240. For the

same reason, a resentencing hearing may be the defendant’s first opportunity to

meaningfully address certain issues pertinent to his sentence. Id. at 1239. In these

circumstances, due process may require a hearing with the defendant present. See

id. at 1239–40.

      Applying this framework in Brown, we held that the district court abused its

discretion in failing to hold a resentencing hearing before modifying Brown’s

erroneously ACCA-enhanced sentence to the correct statutory maximum of ten

years. First, we said that Brown’s entire sentence was undermined by the ACCA-

error because the sentence on his “one and only count of conviction was found to

be in error.” Id. at 1240. Thus, the court “was tasked with crafting an entirely new

sentence” based on a different statutory provision and different guideline range.

Id. Second, we found that court exercised wide discretion in imposing Brown’s

new sentence. Id. We noted that, at the original sentencing hearing, the court

sentenced Brown to the mandatory minimum and did not discuss the guidelines or

the 18 U.S.C. § 3553(a). Id. And in modifying the sentence, the court applied a

significant upward variance from the corrected guideline range of 77 to 96 months

of imprisonment, which was a “clear act of open-ended discretion.” Id. at 1241. In




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light of all of these factors, we held that Brown was entitled to have a resentencing

hearing and be present there. Id.

       In this case, however, the district court’s choice of remedy—a limited

correction to the sentence for the § 922(g)(1) offense without a hearing—was

reasonable under the circumstances.            Hernandez argues that the district court

abused its discretion by refusing to vacate all of his sentences as a “sentencing

package” and conduct a full resentencing. 1 But neither of the two key factors

outlined in Brown are present here, so we cannot say that the “sentence

modification qualifie[d] as a critical stage in the proceedings, requiring a hearing

with the defendant present.” See id. at 1240.

       First, while Hernandez faults the district court for failing to treat his entire

sentence as a package, he does not identify how the ACCA error influenced the

original sentencing court’s decisions on the other counts. See id. at 1239. In light

of the multiple counts of conviction under 21 U.S.C. § 841, the error did not

invalidate the “the only statutory basis” for his sentence. See id. at 1240. Each of


       1
         Hernandez also claims that the district court improperly applied the concurrent-sentence
doctrine. But the court did not apply that doctrine at all. The concurrent-sentence doctrine
allows a reviewing court to decline to review the validity of a conviction if the defendant has
valid, concurrent sentences on other counts of conviction and the defendant would not “suffer
adverse collateral consequences from the unreviewed conviction.” United States v. Bradley, 644
F.3d 1213, 1293 (11th Cir. 2011). Here, by contrast, the district court reached the merits of
Hernandez’s claim of ACCA error and corrected the error, but it declined to grant the remedy of
a full resentencing. Hernandez’s concurrent sentences, to be sure, are relevant to the
determination of whether a resentencing hearing was required. But for the reasons we explain,
the court’s choice of § 2255 remedy was no abuse of discretion.
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the four § 841 offenses carried, at the time of sentencing, a statutory sentencing

range of between five and forty years of imprisonment. So removing the § 924(e)

enhancement did not remove the statutory basis for the total sentence. Nor did it

affect the § 924(c) sentence, which was imposed to run consecutive to the

sentences for the drug offenses along with the § 922(g)(1) sentence. Additionally,

the ACCA error had no effect on Hernandez’s guideline range. That range was

determined under the career-offender guideline’s provisions for defendants who

are convicted of § 924(c), and it did not depend on the § 922(g)(1) offense or the

mandatory minimum. See U.S.S.G. § 4B1.1(c)(2)(B), (3). In sum, the ACCA

error did not undermine Hernandez’s sentence as a whole.

      Second, the district court did not need to exercise significant discretion on

questions that it had not been called upon to consider at the original sentencing

hearing. See Brown, 879 F.3d at 1239–40. Unlike in Brown, where the mandatory

minimum exceeded the otherwise applicable guideline range, the ACCA-enhanced

mandatory minimum in this case was still well below Hernandez’s guideline range

of 262–327 months. Nor did the district court mention the mandatory minimum or

the § 922(g)(1) offense at the original sentencing hearing. Rather, the record

reflects that the court decided a sentence at the low end of the guideline range was

appropriate in light of the § 3553(a) factors. Plus, Hernandez has not identified




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any issues he was unable to meaningfully challenge during his original sentencing

due to the ACCA error. See id. at 1240.

      For these reasons, the district court, even assuming it had the authority to

vacate Hernandez’s entire sentence and conduct a full resentencing, did not abuse

its discretion by correcting the ACCA error without holding a resentencing hearing

and without changing Hernandez’s total sentence. We therefore affirm.

      AFFIRMED.




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