              Case: 12-12689    Date Filed: 08/22/2014   Page: 1 of 13


                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                            Nos. 12-12689 & 12-13244
                           ________________________

     D.C. Docket Nos. 6:07-cr-00054-JA-GJK-1 & 6:07-cr-00073-JA-KRS-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff–Appellee,
                                       versus

RICKY DOUGLAS HAYNES, JR.,

                                                              Defendant–Appellant.

                           ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                           _______________________

                                 (August 22, 2014)

Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.

PRYOR, Circuit Judge:
      This appeal requires us to decide whether a federal prisoner who directly

appeals a resentencing may raise new arguments unrelated to the errors corrected

at the resentencing. Ricky Haynes, a federal prisoner, filed a motion to vacate his

sentence, 28 U.S.C. § 2255, which the district court granted in part because his
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sentence for possession of a firearm and ammunition as a convicted felon, 18

U.S.C. § 922(g), exceeded the 10-year statutory maximum, id. § 924(a)(2). Now

that he has been resentenced on that count, Haynes wants more. He asks us to

revisit an argument that he failed to raise in his direct appeal and unsuccessfully

raised in his motion to vacate. But during the resentencing proceedings, Haynes

invited the resentencing court to limit the scope of the resentencing to the counts

affected by the order granting in part the motion to vacate. We will not now vacate

that new sentence for errors beyond the scope of that limited resentencing.

                                 I. BACKGROUND

      Haynes is currently serving three concurrent, 322-month sentences for five

counts of conviction: three counts of possessing with intent to distribute crack

cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), one count of possessing a firearm and

ammunition as a convicted felon, 18 U.S.C. § 922(g), and one count of using and

carrying a firearm during and in relation to, or possessing a firearm in furtherance

of, a drug trafficking offense, id. § 924(c).

      A federal grand jury initially indicted Haynes for one count of possessing

with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B), one count

of possessing a firearm and ammunition by a convicted felon, 18 U.S.C. §§ 922(g),

and one count of using and carrying a firearm, or possessing a firearm in

furtherance of, a drug trafficking offense, id. § 924(c)(1)(A). Nearly a month later,


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a federal grand jury indicted him for two counts of possession with intent to

distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B). The same district judge

oversaw both prosecutions, but the prosecutions were never consolidated.

      Haynes pleaded guilty to all five counts in one hearing, and the district court

sentenced him on all counts at another hearing. In the earlier filed case, case no.

6:07-cr-00054, the district court imposed a 322-month sentence for each of the

three counts, to be served concurrently. Likewise, in the later filed case, case no.

6:07-cr-00073, the district court imposed two 322-month sentences, one for each

count, to be served concurrently with the sentence in case no. 6:07-cr-00054.

      The district court sentenced Haynes as a career offender under the advisory

United States Sentencing Guidelines. See United States Sentencing Guidelines

Manual § 4B1.1 (Nov. 2006). Haynes had three qualifying prior convictions: (1)

resisting arrest with violence in violation of Florida law; (2) carrying a concealed

firearm in violation of Florida law; and (3) possession with intent to distribute

cocaine base in violation of Florida law. Haynes failed to object to the career-

offender enhancement at sentencing, but he did object to a statement in the

presentence investigation report that he qualified for an enhanced sentence under

the Armed Career Criminal Act, 18 U.S.C. § 924(e). The district court overruled

that objection.




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      Haynes appealed his sentence. We asked appointed counsel to brief whether

possessing a firearm as a convicted felon constituted a violent felony under the

Armed Career Criminal Act. Appointed counsel argued that Haynes was no longer

eligible for an enhancement under the Act, but that Haynes nevertheless remained

eligible for the career-offender enhancement under the Guidelines. Appointed

counsel then moved to withdraw his representation, and we granted that motion.

      Haynes next filed a pro se motion to vacate his sentence, which raised seven

arguments. Relevant to this appeal, Haynes argued that his sentence exceeded the

statutory maximum because he was not an armed career criminal. Haynes also

argued that he was erroneously sentenced as a career offender under the Guidelines

because his prior convictions were not crimes of violence.

      The district court granted the motion to vacate in part. The district court

ruled that Haynes’s 322-month sentence for possessing a firearm and ammunition

as a convicted felon, 18 U.S.C. § 922(g), exceeded the applicable 10-year statutory

maximum, id. § 924(a)(2). In the same order, the district court rejected Haynes’s

argument that he was not a career offender. The district court ruled that Haynes

procedurally defaulted his argument that he was not a career offender because he

failed to raise that argument in his direct appeal. The district court concluded that

Haynes could not establish cause and prejudice to overcome that procedural

default. As part of its partial grant of relief, the district court ordered that Haynes

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“be resentenced on count three of case 6:07-cr-[000]54.” The district court ordered

only that count—possession of a firearm and ammunition as a convicted felon, id.

§ 922(g)—vacated.

      The next day, the district court resentenced Haynes. When the resentencing

court began the hearing, it called only case no. 6:07-cr-00054. The court then

stated it planned “to take care of the business addressed in [the] Court’s [motion to

vacate] order dated April 25, 2012,” which “require[d] resentencing because the

sentence imposed in count three was illegal.” Defense counsel agreed that the court

had convened resentencing for that purpose. Defense counsel also acknowledged

that “obviously” the court was “not going to touch the other case,” case no. 6:07-

cr-00073, involving the two-count indictment for possession with intent to

distribute crack cocaine.

      Defense counsel urged the resentencing court to “restructure” the total

sentence in case no. 6:07-cr-00054 by modifying all three counts, but the court

questioned its jurisdiction to modify anything other than the sentence for

possession of a firearm and ammunition as a convicted felon, the only sentence the

court vacated in its order partially granting the motion to vacate. Defense counsel

persisted and asked that the court resentence count three to the statutory maximum

penalty, 120 months, which could run concurrently with a 262-month sentence for

count one, the drug offense, and consecutively with a 60-month sentence for count

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two, the other firearm offense. That way, the total sentence would still equal 322

months. The district court again doubted it could modify the sentences for the other

counts:

      No, I don’t think I can do that. Because the original sentence was 322
      months on each of counts one, two, and three . . . .
      The only thing I think I have jurisdiction to do is address counts three
      of that. I think the net is the same, but the structure is different.

      Because I don’t think I can go back, based on the current ruling as
      issued by the Court; go back and disturb counts one and two. I’ve only
      addressed three.
The prosecutor then pointed the resentencing court to case law for the proposition

that the resentencing court had the authority to adjust Haynes’s sentence for all

three counts.

      Based on that agreement of the parties, the district court resentenced Haynes

as follows: 262 months of imprisonment on count one for possession with intent to

distribute crack cocaine; 60 months of imprisonment on count two for carrying or

using a firearm during and in relation to a crime of violence; and 120 months of

imprisonment on count three for possessing a firearm and ammunition as a

convicted felon. Haynes would serve the 262-month and 120-month sentences

concurrently and then serve the 60-month sentence consecutively. The total

sentence remained 322 months of imprisonment, which Haynes would serve

concurrently with the two 322-month sentences in case no. 06:07-cr-00073. After

announcing the restructured sentence, the court stated that “[t]he remaining
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portions of the original judgment remain in effect” and that “the amendment only

goes to th[e] extent just announced.”

      At the end of the resentencing hearing, Haynes reasserted his objection that

he was erroneously sentenced as a career offender. The resentencing court allowed

him to restate his objection. Defense counsel admitted that she understood that the

objection would not have any effect on the resentencing proceedings and

understood that the court had already denied that objection.

      After his resentencing, Haynes applied for a certificate of appealability to

contest the denial of the other claims he raised in the motion to vacate his sentence.

He asked to appeal, in part, the career-offender enhancement. In his application,

Haynes raised an altogether new argument about the career-offender enhancement.

Haynes’s newly appointed counsel discovered that one of the prior convictions

cited in the presentence investigation report was too old to count for purposes of

Haynes’s criminal history score and the career-offender enhancement. See

U.S.S.G. § 4A1.2(e), (k). But a judge of this Court denied his application, and a

two-judge panel affirmed that denial. Without a certificate of appealability, we will

not consider in this appeal his arguments about the partial denial of the motion to

vacate. 28 U.S.C. § 2253(c)(1). We decline to reconsider for a second time the

denial of his application, which presents an issue that Haynes failed to raise in the

district court. See 11th Cir. R. 22-1(c) (“The denial of a certificate of appealability,

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whether by a single circuit judge or by a panel, may be the subject of a motion for

reconsideration but may not be the subject of a petition for panel rehearing or a

petition for rehearing en banc.”); see also Johnson v. United States, 340 F.3d 1219,

1228 n.8 (11th Cir. 2003) (“Arguments not raised in the district court are

waived.”), aff’d, 544 U.S. 295, 125 S. Ct. 1571 (2005).

                           II. STANDARD OF REVIEW

      When a defendant raises a sentencing argument for the first time on appeal,

we review any alleged error for plain error. United States v. Bonilla, 579 F.3d

1233, 1238 (11th Cir. 2009). That standard requires an error, that is plain, which

affects substantial rights, and which “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 1238–39 (alteration and internal

quotation marks omitted). But if a defendant has “invited error,” that error will not

be grounds for reversal on appeal. United States v. Love, 449 F.3d 1154, 1157

(11th Cir. 2006). We review for abuse of discretion the decision of a resentencing

court to limit the scope of resentencing after remand from a court of collateral

review. United States v. Bryant, 246 F.3d 650, 654 (6th Cir. 2001).

                                  III. DISCUSSION

      In the two consolidated appeals, nos. 12-12689 and 12-13244, now before

us, Haynes appeals his sentences. Haynes urges us to vacate those sentences so that

a resentencing court can recalculate his guideline range and resentence him without

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the career-offender enhancement. Relatedly, Haynes also contends that the new

penalties under the Fair Sentencing Act, 21 U.S.C. § 841(b)(1)(B)(iii), and an

erroneous criminal history score warrant recalculating his guideline range.

      We decline to vacate Haynes’s sentences. When a court of collateral review

grants a federal prisoner relief, section 2255 calls for an “appropriate” remedy. 28

U.S.C. § 2255(b) (“[T]he court shall vacate and set the judgment aside and shall

discharge the prisoner or resentence him or grant a new trial or correct the sentence

as may appear appropriate.”). It was an “appropriate” remedy to vacate only the

sentence exceeding the statutory maximum. And, as Haynes invited the

resentencing court to do, the resentencing court exercised its discretion when it

limited the resentencing hearing to correct only that issue. We will not now correct

errors that Haynes invited the district court to ignore and that are wholly unrelated

to the error corrected during resentencing.

      “It is a cardinal rule of appellate review that a party may not challenge as

error a ruling or other trial proceeding invited by that party.” United States v. Ross,

131 F.3d 970, 988 (11th Cir. 1997) (internal quotation marks omitted). When a

party invites an error, we are precluded from invoking plain-error review to reverse

that error. See United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). For

example, in United States v. Love, a defendant “repeatedly requested” the court to

impose a term of imprisonment followed by a term of supervised release. 449 F.3d

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at 1155. Then on appeal, the defendant argued that he was ineligible for supervised

release and that the court should vacate the portion of his sentence requiring

supervised release. Id. at 1155–56. Even though the defendant likely was ineligible

for supervised release, we refused to vacate that part of the defendant’s sentence

because he invited the error. Id. at 1157; see also United States v. Mancera-Perez,

505 F.3d 1054, 1057 n.3, 1058 (10th Cir. 2007) (ruling that error was invited when

a defendant failed to offer any argument at sentencing for a lower sentence and

agreed with the district court that the length of the sentence imposed was

reasonable).

      Haynes asks us to vacate not only the restructured sentence, but also the two

322-month sentences in case no. 6:07-cr-00073, but Haynes did not ask the

resentencing court to modify those sentences. Haynes’s position now—that the two

sentences from case no. 6:07-cr-00073 are also in play—is inconsistent with the

position he took at resentencing. The resentencing court called only case no. 6:07-

cr-00054, and Haynes did not object. Haynes’s counsel told the resentencing court

that the parties were “here for” only “the first case, the 7-54 case” and that

“obviously” the resentencing court was “not going to touch the other case.” Haynes

then specifically asked the district court to modify only the sentences in case no.

6:07-cr-00054. Near the end of the proceedings, Haynes did not object when the

resentencing court stated that “[t]he remaining portions of the original judgment

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remain in effect” and “the amendment only goes to th[e] extent just announced.”

The resentencing court then issued a new judgment in both cases only to reaffirm

that Haynes would serve the sentences concurrently.

      We refuse to entertain Haynes’s argument that the resentencing court should

have corrected the two sentences in case no. 6:07-cr-00073—a dubious proposition

given the limited scope of collateral relief—because Haynes invited the court to

limit the resentencing proceedings to case no. 6:07-cr-00054. At resentencing,

Haynes remarked that “obviously” the resentencing court would “not . . . touch the

other case.” We will not now fault the district court for abiding by his request. See

Silvestri, 409 F.3d at 1327.

      Haynes also invited the resentencing court to limit the resentencing to

restructuring the sentences affected by the partially vacated sentence. At the

resentencing, all parties acknowledged that they were there to correct the 322-

month sentence for possession of a firearm and ammunition as a convicted felon,

18 U.S.C. § 922(g), which exceeded the statutory maximum, id. § 924(a)(2). And

defense counsel herself proposed the amended sentence lengths. To be sure,

defense counsel reasserted the objection to the career-offender enhancement at the

end of the resentencing, but she expressed that she did not expect that objection to

have any “effect” on the resentencing.




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      Given this conduct at the resentencing, we will not entertain Haynes’s

argument about the career-offender enhancement. Just as the defendant in Love

asked for a sentence with supervised release, 449 F.3d at 1155–57, Haynes asked

for an amended sentence that incorporated the career-offender enhancement.

Because Haynes appeals the very sentence he invited the resentencing court to

impose, we decline to review the alleged errors.

      We finally note that, even if Haynes had not invited the resentencing court to

limit its review, a resentencing court has the discretion to limit resentencing to the

“appropriate” relief granted in the order to vacate, set aside, or correct the

prisoner’s sentence. 28 U.S.C. § 2255(b). Haynes’s court of collateral review ruled

that the sentence imposed for his conviction for possession of a firearm and

ammunition as a convicted felon was illegal. As a result, the court vacated that

particular sentence and ordered resentencing. In that same order granting partial

relief, the court denied relief to Haynes on the basis that he was erroneously

sentenced as a career offender. We cannot now rule that the resentencing court

abused its discretion when it did not address Haynes’s argument that he was

erroneously sentenced as a career offender—an argument that the district court on

collateral review denied—and instead limited the resentencing to the counts

affected by the collateral-review proceedings. See United States v. Willis, 649 F.3d

1248, 1256 (11th Cir. 2011) (“The district court rejected [the defendant’s

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arguments] regarding those issues and had no reason to relitigate what had, in its

view, been decided without error.”); Bryant, 246 F.3d at 654 (“When a district

court orders a resentencing the court has the power to determine the appropriate

scope of the resentencing.”); United States v. Jones, 114 F.3d 896, 897 (9th Cir.

1997) (“[T]he statute[, 28 U.S.C. § 2255,] gives district judges wide berth in

choosing the proper scope of post-2255 proceedings.”); United States v. Moore, 83

F.3d 1231, 1235 (10th Cir. 1996) (“[W]here the district court itself ordered the

vacation, it has the discretion to determine the scope of the resentencing.”).

                                IV. CONCLUSION

      We AFFIRM Haynes’s sentence.




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