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                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-11668
                              ________________________

                     D.C. Docket Nos. 3:03-cr-00133-LC-CJK-1,
                              3:16-cv-00282-LC-CJK


UNITED STATES OF AMERICA,
                                                                     Plaintiff-Appellee,

versus

RIC THOMASON JR.,

                                                                    Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                           ________________________

                                    (October 10, 2019)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,*
District Judge.




         *
        Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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WILLIAM PRYOR, Circuit Judge:

      This appeal requires us to decide whether the district court abused its

discretion in denying Ric Thomason Jr. a resentencing hearing after it granted his

motion to correct his sentence, 28 U.S.C. § 2255, for an error that affected four of

his eight counts of conviction but did not change his guideline range. Thomason

pleaded guilty to four counts of being a felon in possession of a firearm, 18 U.S.C.

§§ 922(g)(1), 924(e), and four counts of possession and sale of stolen firearms, id.

§§ 922(j), 924(a)(2). The district court ruled that his felon-in-possession

convictions qualified for an increased sentence under the Armed Career Criminal

Act, id. § 924(e), but that his guideline range of 235 to 293 months of

imprisonment remained the same. The district court departed upwards based on

Thomason’s criminal history and imposed a concurrent sentence of 327 months of

imprisonment for the felon-in-possession convictions and 120 months of

imprisonment for the stolen-firearms convictions. Thomason moved to correct his

sentence after the Supreme Court ruled the residual clause of the Act void for

vagueness in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The district

court granted Thomason’s motion and, after considering the parties’ briefs and

exhibits but without holding a hearing, lowered his sentence to the top of the




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guideline range—293 months of imprisonment—for the felon-in-possession

convictions but left the rest of his sentence intact. We affirm.

                                I. BACKGROUND

      In 2003, police arrested Ric Thomason Jr., a convicted felon, for selling

stolen firearms out of a stolen pickup truck. Between the firearms in Thomason’s

possession, those he had sold earlier that day, and those he had previously sold to

pawn shops, police linked Thomason to 21 stolen firearms, almost all of which had

been stolen in recent home burglaries.

      Thomason pleaded guilty to four counts of possession of a firearm by a

convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e), and four counts of possession and

sale of stolen firearms, id. §§ 922(j), 924(a)(2). The presentence investigation

report grouped those counts together for a base offense level of 26. See United

States Sentencing Guidelines Manual §§ 2K2.1(a)(1); 3D1.2(d) (Nov. 2003). The

report then recommended a four-level increase for an offense involving at least

eight but not more than 24 firearms, id. § 2K2.1(b)(1)(B), a two-level increase for

an offense involving stolen firearms, id. § 2K2.1(b)(4), a four-level increase

because the firearms were possessed during the commission of burglaries, id.

§ 2K2.1(b)(5), and a three-level reduction for acceptance of responsibility, id.

§ 3E1.1(a), (b). These adjustments yielded a total offense level of 33.




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      The report also determined that Thomason’s four felon-in-possession

convictions qualified for increased sentences under the Armed Career Criminal

Act, 18 U.S.C. § 924(e), because of his four prior convictions for third-degree

burglary, two prior convictions for third-degree escape, and one prior conviction

for attempted escape. The Act raises the statutory range for the felon-in-possession

convictions from zero to 10 years of imprisonment to 15 years to life

imprisonment. Id. § 924(a)(2), (e)(1). And it raises the guideline range if the

offense level or the criminal history category from the provision of the Guidelines

tied to the enhancement is higher than the defendant’s offense level or criminal

history category from the otherwise applicable provisions of the Guidelines.

U.S.S.G. § 4B1.4. The report concluded that although the enhancement raised

Thomason’s statutory sentencing range, it did not affect his guideline range

because his offense level and criminal history category were higher under the

otherwise applicable provisions of the Guidelines.

      The district court adopted this conclusion, without objection, but it erred.

Under the 2003 version of the Guidelines, the special offense characteristics in

section 2K2.1(b)(1)–(4) could not increase “the cumulative offense level” above

29, yet the report included special offense characteristics under those provisions

that brought Thomason’s cumulative offense level to 32. Absent that error,

Thomason’s total offense level would have been only 30—one point lower than his


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offense level under the provision tied to the enhancement. So the higher offense

level from the provision tied to the enhancement should have applied, which means

the enhancement should have raised his guideline range. See id. § 4B1.4(b)(3)(A).

It is undisputed that the district court correctly calculated Thomason’s criminal

history category as VI.

      Unaware of this error because neither party raised it, the district court

determined that Thomason’s guideline range was 235 to 293 months of

imprisonment. The district court imposed a sentence of 327 months of

imprisonment on each of the felon-in-possession convictions, see id. § 4A1.3, and

the statutory maximum of 120 months of imprisonment on the stolen-firearms

convictions, all to run concurrently. The 327-month term was the result of an

upward departure based on the “extent and nature of [Thomason’s] criminal

history,” which included many unscored juvenile and adult convictions and three

pending criminal matters involving similar conduct. See id. § 4A1.3. Thomason did

not appeal his convictions or sentence.

      In 2016, Thomason filed a motion to correct his sentence, 28 U.S.C. § 2255,

on the ground that he no longer qualified for an enhanced sentence under the

Armed Career Criminal Act based on Johnson v. United States, 135 S. Ct. 2551,

2563 (2015). The government conceded that Thomason’s enhanced sentence was

unlawful, but it asked the district court to “preserve the originally imposed


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sentence” of 327 months of imprisonment by imposing consecutive, instead of

concurrent, sentences for his felon-in-possession convictions. Under this approach,

the government argued that the district court would not need to hold a resentencing

hearing. Thomason replied that a concurrent sentence of 120 months of

imprisonment was warranted and that, if the district court were inclined to run his

sentences consecutively, he should be afforded a “formal resentencing” where he

could present evidence of his post-sentencing rehabilitative conduct.

      The district court granted Thomason’s motion to correct his sentence.

Instead of holding a formal resentencing hearing, the district court invited the

parties to “submit any additional written materials that they wish the court to

consider in fashioning a just and reasonable sentence.” Thomason submitted a

sentencing memorandum with exhibits detailing his post-sentencing conduct. The

filings explained that Thomason had obtained his general equivalency diploma and

a certificate in horticulture and received a favorable progress report from his case

manager. He contended that “[i]mposing the same sentence . . . would not account

for [his] demonstrated dedication to rehabilitation and his positive response to

incarceration.” The government again asked the district court to reimpose a

sentence of 327 months on the ground that the district court had already considered

all the relevant statutory sentencing factors, 18 U.S.C. § 3553(a), when it departed

upwards at the original sentencing hearing.


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      The district court reduced Thomason’s total sentence to 293 months of

imprisonment. It explained that the Johnson error had not affected Thomason’s

original guideline range of 235 to 293 months of imprisonment but had raised his

statutory range for each of the four felon-in-possession convictions. Without the

erroneous enhancements under the Act, Thomason’s statutory range was zero to

ten years of imprisonment on each count—much lower than even the bottom of the

guideline range. But the district court explained that a sentence at the top of the

range—293 months—was “just and reasonable” based on its consideration of the

parties’ arguments and the statutory sentencing factors. To reach that sentence, it

imposed a 120-month term of imprisonment for each of the four felon-in-

possession counts, to run consecutively to the extent necessary to achieve a total

term of imprisonment of 293 months. See U.S.S.G. § 5G1.2(d). The district court

left “all other provisions” of its original judgment and sentence in “full force and

effect.”

      We granted a certificate of appealability on “whether the district court

abused its discretion in failing to hold a resentencing hearing, with the defendant

present, prior to imposing a modified sentence.”

                          II. STANDARD OF REVIEW

      “In a section 2255 proceeding, we review legal conclusions de novo and

factual findings for clear error.” Osley v. United States, 751 F.3d 1214, 1222 (11th


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Cir. 2014). We review for an abuse of discretion the remedy granted by a district

court when it corrects a sentence. United States v. Brown, 879 F.3d 1231, 1235

(11th Cir. 2018). Under this 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).

                                   III. DISCUSSION

         When a district court grants a motion to vacate, set aside, or correct a

sentence based on a sentencing error, it must either resentence the prisoner or

correct his sentence. Brown, 879 F.3d at 1235 (citing 28 U.S.C. § 2255(b)). A

resentencing is “close[] to beginning the sentencing process anew” and is “open-

ended and discretionary.” Id. at 1236. A sentence correction, in contrast, is “a more

limited remedy, responding to a specific error.” Id. The district court has broad

discretion to choose between these remedies. Id. at 1235. But the Due Process

Clause places a limit on that discretion. See U.S. Const. amend V.

         The Due Process Clause grants criminal defendants a “right to be present at

any stage of the criminal proceeding that is critical to its outcome if his presence

would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S.

730, 745 (1987). One “critical stage” is when the defendant’s sentence is imposed,

which we have ruled “extends to the imposition of a[n entirely] new sentenc[e]”


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following vacatur of the previous sentence. United States v. Jackson, 923 F.2d

1494, 1496 (11th Cir. 1991); see also Fed. R. Crim. P. 43(a)(3) (“[T]he defendant

must be present at . . . sentencing.”). The defendant’s presence at the sentencing

hearing “ensure[s] that . . . [he] has an opportunity to challenge the accuracy of

information the sentencing judge may rely on, to argue about its reliability and the

weight the information should be given, and to present any evidence in mitigation

he may have.” Jackson, 923 F.2d at 1496–97.

      A defendant does not have “a right to be present whenever” a district court

takes an action to modify his sentence. United States v. Parrish, 427 F.3d 1345,

1347 (11th Cir. 2005) (quoting Jackson, 923 F.2d at 1496). For example, a

defendant does not have a right to be present when the district court corrects or

reduces his sentence because of an arithmetical error or based on a motion for

substantial assistance, Fed. R. Crim. P. 35, or for extraordinary reasons, 18 U.S.C.

§ 3582(c). Fed. R. Crim. P. 43(b)(4). After all, the defendant has a right to be

present only if the modification to the sentence constitutes a critical stage where

“his presence would contribute to the fairness of the procedure,” Stincer, 482 U.S.

at 745, and many minor modifications to sentences do not satisfy that requirement.

See Jackson, 923 F.2d at 1496–97 (holding that the defendant did not have a right

to a hearing before a correction under Rule 35 because unlike “an initial

sentencing, or even a resentencing where an entire sentencing package has been


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vacated on appeal,” in a correction under Rule 35, the “necessary process has

already occurred”).

      To determine if a sentence correction is a critical stage requiring a hearing

with the defendant present, we have identified two fact-intensive inquiries “to

guide our consideration.” Brown, 879 F.3d at 1239–40. First, we ask whether “the

errors [that required] the grant of habeas relief undermine[d] the sentence as a

whole.” Id. at 1239. Second, we ask whether “the sentencing court exercise[d]

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. If these factors are present, the district court may not modify the defendant’s

sentence without holding a hearing with the defendant present. Id. at 1240.

      An error undermines the sentence as a whole when it forces the district court

to revisit the entire sentence. This kind of error occurred in Brown when the

movant’s sentence on a single count had been erroneously enhanced under the

Armed Career Criminal Act—for an increased statutory and guideline range. Id. at

1240. There may also be times when a hearing is required even if only one count in

a multi-count conviction is unlawful. Id. at 1239. But when the district court

vacates a single count in a multi-count conviction, it has the discretion to

determine whether it needs to conduct a full resentencing to ensure that the

sentence remains “sufficient, but not greater than necessary, to comply with the


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purposes [of sentencing in section 3553(a)].” 18 U.S.C. § 3553(a); Jackson, 923

F.2d at 1496–97; Troiano v. United States, 918 F.3d 1082, 1087 (9th Cir. 2019)

(“[T]he decision . . . to conduct a full resentencing on all remaining counts of

conviction when [the district court modifies] one or more counts of a multi-count

conviction . . . rests within the sound discretion of the district court.”), cert.

denied, 139 S. Ct. 2729 (2019); United States v. Hadden, 475 F.3d 652, 669 (4th

Cir. 2007).

      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. See Brown, 879 F.3d at 1239–40. In Jackson, for example,

we held that the district court was not required to hold a hearing before correcting

the defendant’s sentence, Fed. R. Crim. P. 35, after concluding that the sentences

for some of the counts were too long and lowering the sentences for those counts.

923 F.2d at 1495–97. And in Troiano, the Ninth Circuit held that the district court

did not abuse its discretion in refusing to hold a hearing before reducing the

movant’s sentence on one count in a four-count conviction when correcting the

error did not change the movant’s guideline range or his total sentence. 918 F.3d at

1084–88; see also Hadden, 475 F.3d at 669 (holding that the district court did not

err in refusing to hold a hearing before vacating one count of a three-count




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conviction and reducing the total sentence by the term of imprisonment for that

count).

      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.” Brown, 879 F.3d at 1239. That exercise may occur, for

example, if the district court vacates a mandatory-minimum sentence and then is

able to consider the statutory sentencing factors for the first time. Id. But, “[a]t the

other end of the spectrum,” a district court does not exercise its discretion when it

vacates and reimposes the “exact same sentence” to allow a defendant “to file an

out-of-time direct appeal.” Id. (citing Parrish, 427 F.3d at 1346, 1348). Again, the

touchstone is whether the district court exercised its discretion so significantly that

the modification is a critical stage where the defendant’s presence could make a

difference. See id.

      The district court did not abuse its discretion in rejecting Thomason’s

request for a hearing. The Johnson error in Thomason’s original sentencing did not

undermine his sentence as a whole. In imposing the original sentence for

Thomason’s four felon-in-possession counts, the district court did not rely on a

guideline range that was affected by the Johnson error, nor did it appear to rely on

the erroneous fifteen-year mandatory minimum. It instead calculated a guideline

range that was unaffected by the error and then, after determining that the top of


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that range was insufficient, departed upwards—147 months above the mandatory

minimum. This record made it simple to correct Thomason’s sentence. The district

court again considered the guideline range and determined, based on “the record

and the arguments and submissions of the parties,” that lowering the sentence to

293 months of imprisonment was “just and reasonable.”

      To be sure, Thomason’s guideline range would have been affected by the

Johnson error if the Guidelines had been correctly calculated at his original

sentencing. But Thomason failed to make the district court aware of that error, so

the Johnson error did not impact his guideline range. And Thomason cannot

challenge the Guidelines calculation now because even if he had preserved this

claim, it is not cognizable in a motion to vacate. Spencer v. United States, 773 F.3d

1132, 1140 (11th Cir. 2014) (en banc) (holding that a miscalculation of the

guideline range is not cognizable in a motion to vacate because the “miscalculation

of [an advisory] guideline range cannot be a complete miscarriage of justice”).

      Thomason erroneously argues that the Johnson error undermined his

sentence as a whole because he is essentially in the same position as the movant in

Brown. Thomason contends that by the time he filed his section 2255 motion, he

had already served over 120 months in prison—the term of imprisonment for his

four counts of possession and sale of stolen firearms—so the only portion of his

sentence that remained was his unlawfully enhanced 327-month term of


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imprisonment. He argues that, like Brown’s single count of conviction, his entire

sentence was essentially vacated. See Brown, 879 F.3d at 1240. But Thomason

misunderstands the nature of our analysis in Brown, which looked at the

modification “pragmatic[ally],” undertaking a “fact-intensive inquiry into whether

the errors requiring the grant of habeas relief undermine[d] the sentence as a

whole.” Id. at 1238. As explained, the answer to that inquiry is no.

      When Thomason was first sentenced, only half of his counts of conviction

were unlawfully subject to an enhanced statutory range. Although correcting the

error did not require the district court to reduce his sentence—in fact, the corrected

statutory range permitted a sentence of up to 960 months of imprisonment—the

district court nevertheless chose to reduce his term of imprisonment on the four

counts that had been unlawfully enhanced. Even though Thomason had already

been imprisoned longer than the term of imprisonment on the other four counts, we

cannot ignore the fact that when the error occurred—at the original sentencing—it

did not affect half of his counts or his guideline range. And Thomason received a

hearing at that time, where he was free to object to the government’s evidence,

present evidence and arguments in support of mitigation, and personally address

the sentencing court. See Jackson, 923 F.2d at 1496–97. The Johnson error did not

undermine Thomason’s sentence as a whole when the error did not change his

guideline range and the district court imposed a less onerous total sentence.


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      The two exercises of discretion by the district court were not so significant

as to require Thomason’s presence. The district court first exercised its discretion

by considering evidence of Thomason’s post-sentencing rehabilitative conduct.

Thomason argues that he should have had the opportunity to present this evidence

in a hearing, but we have already held that a district court may rely on post-

sentencing conduct in a sentence-modification procedure, 18 U.S.C. § 3582(c),

without holding a hearing as long as both parties are given notice and an

opportunity to contest the new information. United States v. Jules, 595 F.3d 1239,

1245 (11th Cir. 2010). That process is exactly what the district court employed

here by inviting the parties to make written submissions. The district court did not

abuse its discretion when it considered evidence of his rehabilitation in writing

instead of at a formal hearing. Nor did the district court abuse its discretion when it

changed Thomason’s sentences on his four felon-in-possession convictions from

concurrent to consecutive. In Jackson, the district court modified the defendant’s

sentence by reducing the term on two of his counts to their lowered statutory

maximums and running those terms consecutively, leading to a sentence that was

15 years shorter than the original sentence. 923 F.2d at 1496. We affirmed the

decision to make that modification without holding a hearing. Id. at 1497.

      Thomason argues that the district court varied upward when it modified his

sentence, which was an act of discretion that required a hearing, but no upward


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variance occurred. The district court imposed a sentence at the top of the guideline

range. And because that sentence was longer than the statutory maximum for any

of Thomason’s individual counts of conviction, it ran the four 120-month terms

consecutively to the extent necessary to achieve a total term of imprisonment of

293 months. See U.S.S.G. § 5G1.2(d). So, contrary to Thomason’s contention, the

district court did not vary upward. And the two exercises of discretion by the

district court were not so significant that due process required it to hold a hearing

with Thomason present.

                                IV. CONCLUSION

      We AFFIRM the order modifying Thomason’s sentence.




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