                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0268p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                              ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                         >    No. 18-1676
       v.                                               │
                                                        │
                                                        │
 LAWRENCE FLACK,                                        │
                                Defendant-Appellant.    │
                                                        ┘

                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
               No. 2:13-cr-20279-1—Stephen J. Murphy, III, District Judge.

                                   Argued: August 1, 2019

                             Decided and Filed: October 23, 2019

             Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.

                                    _________________

                                         COUNSEL

ARGUED: Elizabeth Heise, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor,
Michigan, for Appellant. Margaret Marie Smith, UNITED STATES ATTORNEY’S OFFICE,
Detroit, Michigan, for Appellee. ON BRIEF: Elizabeth Heise, Melissa M. Salinas,
UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant.
Margaret Marie Smith, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.
         KETHLEDGE, J., delivered the opinion of the court in which MOORE and MURPHY,
JJ., joined. MURPHY, J. (pp. 6–7), delivered a separate concurring opinion.
 No. 18-1676                          United States v. Flack                                Page 2


                                        _________________

                                             OPINION
                                        _________________

       KETHLEDGE, Circuit Judge. In this case the district court’s error was one that this
court invited. Lawrence Flack argues that the district court erred when it failed to hold a
resentencing hearing after, at our direction, the district court vacated one of Flack’s convictions.
The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our
remand order seemed to suggest that the court did not need to. But on this record that suggestion
was mistaken. We therefore vacate Flack’s sentence and remand for him to be resentenced
pursuant to a sentencing hearing.

       In 2013, Flack pled guilty to one count of receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2) and one count of possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court sentenced Flack to 262 months’ imprisonment, which was
the bottom of his Guidelines range.

       A year later, Flack moved to vacate his sentence under 28 U.S.C. § 2255, arguing that his
counsel had been ineffective. The district court denied the motion. On appeal, we held that
Flack’s counsel had been ineffective for failing to argue that Flack’s convictions for both receipt
and possession of the same child pornography violated the Double Jeopardy Clause.                We
therefore issued what we called a “general remand,” with instructions to the district court to
vacate one of the convictions. The remand order gave “the district court discretionary authority
over which of Flack’s convictions to vacate and whether to conduct a resentencing hearing[.]”
The order also stated that, if the district court vacated Flack’s possession conviction, then
“resentencing is not necessary” because his Guidelines range would remain the same.

       On remand, the district court vacated Flack’s possession conviction and imposed the
same sentence of 262 months’ imprisonment. In its order, the court said it “need not conduct a
resentencing hearing” because its previous sentence “properly account[ed]” for the sentencing
factors listed in 18 U.S.C. § 3553. We review for an abuse of discretion the form of relief that
 No. 18-1676                         United States v. Flack                                  Page 3


the district court granted under § 2255. See Ajan v. United States, 731 F.3d 629, 633 (6th Cir.
2013).

         Flack argues that the district court abused its discretion because, he says, he was entitled
to a resentencing hearing. We have previously held—albeit on direct review—that, “upon a
general remand for resentencing, a defendant has a right to a plenary resentencing hearing at
which he may be present and allocute.” United States v. Garcia-Robles, 640 F.3d 159, 161 (6th
Cir. 2011). Every other circuit to have decided the issue has held the same. See United States v.
DeMott, 513 F.3d 55, 58 (2d Cir. 2008); United States v. Muhammad, 478 F.3d 247, 249–50 (4th
Cir. 2007); United States v. Faulks, 201 F.3d 208, 210–11 (3d Cir. 2000); United States v.
Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991); United States v. Moree, 928 F.2d 654, 655–56
(5th Cir. 1991); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991). That holding
follows directly from the Federal Rules of Criminal Procedure, which provide that “the
defendant must be present” at sentencing and that he has a right to allocute there. Fed. R. Crim.
P. 43(a)(3), 32(i)(4). And the Federal Rules do “not distinguish between a defendant’s initial
sentencing and a resentencing upon direct appeal.” Garcia-Robles, 640 F.3d at 165. The same is
true for 18 U.S.C. § 3553, “which requires a sentencing court to state the reasoning underlying a
sentence ‘in open court[.]’” Id. at 164 (quoting § 3553(c)).

         This case comes to us on collateral review pursuant to § 2255, rather than on direct
review as in Garcia-Robles; but the point of that decision is that a sentencing is sentencing,
regardless of the docket entries that precede it. And a sentencing must occur in open court with
the defendant present. 18 U.S.C. § 3553(c); Fed. R. Crim. P. 43(a)(3). Like every other circuit
to have reached the issue, therefore, we hold that a resentencing pursuant to § 2255 must be
conducted during a sentencing hearing. See United States v. Brown, 879 F.3d 1231, 1235–40
(11th Cir. 2018); Muhammad, 478 F.3d at 250 n.2; Williamson v. United States, 265 F.2d 236,
239 (5th Cir. 1959).

         Of course, § 2255(b) allows a district court either to “resentence” a defendant or to
“correct” his sentence, “as may appear appropriate.” And we have said that a court may
“correct” a defendant’s sentence without holding a resentencing hearing. See, e.g., United States
v. Mitchell, 905 F.3d 991, 994 (6th Cir. 2018); cf. Fed. R. Crim. P. 43(b)(4) (stating that a
 No. 18-1676                        United States v. Flack                                 Page 4


defendant need not be present if “[t]he proceeding involves the correction or reduction of
sentence under Rule 35 or 18 U.S.C. § 3582(c)”). Whether Flack was entitled to a sentencing
hearing on remand, therefore, depends on whether the court corrected his sentence or
resentenced him.

       A district court “corrects” a defendant’s sentence when its action is arithmetical,
technical, or mechanical. See Fed. R. Crim P. 35(a); Brown, 879 F.3d at 1236; United States v.
Palmer, 854 F.3d 39, 48 (D.C. Cir. 2017). For example, the court corrects a sentence when—at
a circuit court’s direction on remand—the court merely cuts back to the statutory maximum a
sentence that had exceeded it, cf. United States v. Bryant, 643 F.3d 28, 32 (1st Cir. 2011); or
when the court does “no more than mechanically vacate . . . unlawful convictions (and
accompanying sentences)[,]” see Palmer, 854 F.3d at 48. Correction of a sentence therefore
does not involve “a reevaluation of the appropriateness of [the defendant’s] original sentence.”
Id. at 42. In contrast, a district court resentences the defendant, for purposes of § 2255, when it
revisits the § 3553(a) factors and determines anew what the sentence should be. See Brown, 879
F.3d at 1236. A resentencing could thus result in the same sentence as the one the district court
imposed initially.

       That is what happened here. After vacating Flack’s conviction for possession of child
pornography, the court reasoned that its original sentence of 262 months “properly accounts for”
all the § 3553(a) factors, which the court then enumerated in its order. See May 25, 2018 Order
at 2. The court’s decision thus reflected a “reevaluation of [the] original sentence[,]” Palmer,
854 F.3d at 42, which could have come out differently if the district court had so chosen. The
district court’s action thus amounted to a resentencing of Flack rather than to a correction of his
sentence. And that means the court was required to hold a sentencing hearing at which Flack
was present and during which the court would announce the reasons for the sentence “in open
court.” Fed. R. Crim. P. 43(a); 18 U.S.C. § 3553(c).

       The government for its part argues that our remand order was limited rather than general.
Specifically, the government contends that our order by its terms allowed the district court only
to correct Flack’s sentence, rather than to resentence him. But the order itself described our
remand as “general”; and the order’s terms expanded rather than limited the court’s discretion as
 No. 18-1676                        United States v. Flack                               Page 5


to the proceedings on remand. Therein lay our own mistake: our order can be read to allow the
court to revisit the propriety of Flack’s original sentence without conducting a sentencing
hearing. That confusion likely arose from the “wide berth” that § 2255 gives district courts “in
choosing the proper scope of post-2255 proceedings.” Ajan, 731 F.3d at 633 (internal quotation
marks omitted). And indeed the district court conceivably could have “mechanically vacate[d]”
Flack’s conviction and sentence for possession—thereby leaving in place his original sentence
for receipt without in any way revisiting the propriety of that sentence. See Palmer, 854 F.3d at
48. That in essence is what the district court did in Palmer. But the district court here—to its
credit—chose to apply the § 3553(a) factors anew, which meant that its action was a
resentencing and that the court was required to hold a sentencing hearing.

       We vacate Flack’s sentence and remand for proceedings consistent with this opinion.
 No. 18-1676                           United States v. Flack                             Page 6


                                         _________________

                                          CONCURRENCE
                                         _________________

        MURPHY, Circuit Judge, concurring. I join the court’s opinion but write to express a
note of caution to the district courts in this circuit.

        This case addresses the remedies available when a federal criminal judgment contains an
error that a district court may redress under 28 U.S.C. § 2255. If a district court finds a
redressable error, the statute says, “the 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.” Id. § 2255(b).         For sentencing errors, this text gives courts a choice
between two remedies—either “resentence” the defendant or “correct” the defendant’s sentence.
Id.

        This distinction matters. As our decision today holds, a “resentencing” under § 2255(b)
must come with a sentencing’s usual protections, including the defendant’s right to be present
and make a statement. But a “correction” of a sentence need not follow those procedures.

        In this case, the district court’s analysis qualifies as a resentencing of Lawrence Flack,
not a correction of his sentence. The district court stated:

        The Court’s previous sentence of 262 months’ imprisonment for Flack’s receipt
        conviction is “sufficient, but not greater than necessary” to accomplish the
        purposes set forth in 18 U.S.C. § 3553. The sentence properly accounts for the
        nature and circumstances of the offense, acknowledges the history and
        characteristics of the defendant, reflects the seriousness of the offense, promotes
        respect for the law, and provides just punishment for the offense. See id. at
        § 3553(a)(1) and (a)(2).

It thus evaluated the § 3553(a) factors to find that Flack’s 262-month sentence for the receipt of
child pornography “is ‘sufficient, but not greater than necessary.’” And because the court
resentenced Flack, Flack was entitled to be present. Yet, as our decision also makes clear, the
court likely could have corrected Flack’s sentence if it had, without more, simply vacated the
 No. 18-1676                        United States v. Flack                                 Page 7


duplicative 240-month concurrent sentence for possession of child pornography.             Such a
correction would not have required Flack’s presence.

       That said, I see potential tension between our holding in this case and some earlier dicta
in United States v. Nichols, 897 F.3d 729 (6th Cir. 2018). See also United States v. Mitchell, 905
F.3d 991, 994 (6th Cir. 2018). Nichols suggested that we must subject even a “corrected”
sentence to the full reasonableness review that applies to an original sentence. See 897 F.3d at
736. To be procedurally reasonable, moreover, a sentence must account for the § 3553(a)
factors. Id. at 737. Reading Nichols alone, a district court might feel obliged to evaluate the
§ 3553(a) factors in order to avoid a procedural-reasonableness challenge to a mere sentencing
correction. Under today’s decision, however, it is that very evaluation of the § 3553(a) factors
that could transform a “correction” into a “resentencing” and so trigger the full sentencing
process.

       What are district courts to do?

       The answer, it seems to me, lies in what Nichols meant by “reasonableness” review. The
reasonableness review that applies to corrections cannot be the same as the reasonableness
review that applies to sentencings. See Mitchell, 905 F.3d at 994. Nichols itself said that
“[w]hen the court imposes a corrected sentence that is largely consistent with the rationale of the
original sentence, a de novo resentencing would be largely redundant and wasteful.” 897 F.3d at
738. And because we hold today that a new evaluation of the § 3553(a) factors transforms a
correction into a resentencing, that evaluation cannot be necessary under the dicta in Nichols. If
it were, we would erase the “correction” portion of the statute and require resentencing in every
case. Instead, district courts may issue corrections that do not reassess the § 3553(a) factors if
they simply offer a reasoned explanation for choosing a correction rather than a resentencing. In
this case, however, the district court affirmatively reevaluated the § 3553(a) factors to determine
the proper sentence anew. It thus “resentenced” Flack.

       With this understanding of these opinions, I concur.
