                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3201
                         ___________________________

                                Mario Ronrico Smith

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                    ____________

                            Submitted: February 14, 2019
                               Filed: July 18, 2019
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       In 2013, a jury convicted Mario Ronrico Smith of possession with intent to
distribute cocaine (“Count 1”), using and carrying a firearm during a drug trafficking
crime (“Count 2”), and felon in possession of a firearm (“Count 3”). At sentencing,
the district court1 overruled Smith’s objection that two prior convictions for fleeing
an officer in a vehicle were not violent felonies and crimes of violence under the
“residual clauses” of the Armed Career Criminal Act (“ACCA”) and the career
offender advisory guidelines. Therefore, the court sentenced Smith as an armed
career criminal on Count 3, see 18 U.S.C. § 924(e) and USSG § 4B1.4, and as a
career offender under the advisory guidelines on Counts 1 and 2, see USSG §§ 4B1.1
and 4B1.2. This resulted in a guidelines sentencing range of 420 months to life in
prison. Varying downward, the court imposed concurrent 220-month sentences on
Counts 1 and 3 and a consecutive 60-month sentence on Count 2. The court stated
that “it would have imposed the same sentence had it sustained defendant’s . . .
objections” to the armed career criminal and career offender determinations. On
direct appeal, Smith raised no sentencing issues; we affirmed. United States v. Smith,
789 F.3d 923 (8th Cir. 2015).

       One week after we decided Smith’s direct appeal, the Supreme Court issued its
decision in Johnson v. United States, 135 S. Ct. 2551 (2015), holding the residual
clause of the ACCA void for vagueness under the Fifth Amendment. In June 2016,
Smith filed a timely pro se motion to vacate his sentence under 28 U.S.C. § 2255,
arguing, as relevant here, that appellate counsel provided ineffective assistance when
he failed to note that a Supreme Court decision was pending in Johnson; and that his
sentence should be vacated because, after Johnson, his fleeing convictions no longer
qualified as violent felonies under the ACCA or crimes of violence under the career
offender guidelines. The district court appointed post-conviction counsel who filed
a memorandum supporting Smith’s motion.

       At the government’s request, the district court stayed the § 2255 proceedings
until the Supreme Court decided, in Beckles v. United States, 137 S. Ct. 886 (2017),


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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that the residual clause in the advisory career offender guidelines was not subject to
a Fifth Amendment vagueness challenge. After Beckles, the government opposed
Smith’s § 2255 motion, conceding that his Count 3 ACCA sentence was no longer
valid under Johnson but arguing that he was not entitled to § 2255 relief because
appellate counsel did not provide ineffective assistance and because Smith was not
entitled to sentencing relief under the concurrent sentence doctrine.

       Agreeing with the government, the district court denied Smith’s § 2255 motion.
Smith did not establish ineffective assistance of appellate counsel, the court
concluded, because counsel’s failure to anticipate Johnson’s change in the law did not
constitute deficient performance. Although Smith’s ACCA sentence on Count 3 was
no longer valid after Johnson, the concurrent sentence doctrine applied, the court
concluded, because Beckles had foreclosed Smith’s challenge to his concurrent career
offender sentence on Count 1. Therefore, “even if the court . . . granted Smith relief
on count 3, his imprisonment term would remain the same because his conviction on
count 1, which is still valid, is the same as his sentence for count 3.” We granted a
certificate of appealability on these issues. Reviewing de novo, we affirm.

                   I. The Concurrent Sentence Doctrine Issue.

       Smith’s § 2255 motion argued that both his Count 1 career offender sentence
and his Count 3 ACCA sentence must be vacated under Johnson. Beckles established
that Johnson provides no basis for § 2255 relief from the Count 1 career offender
sentence under the advisory guidelines. The district court therefore invoked the
discretionary concurrent sentence doctrine to deny sentencing relief. That doctrine
“allows courts to decline to review the validity of a concurrent conviction or sentence
when a ruling in the defendant’s favor ‘would not reduce the time he is required to
serve’ or otherwise ‘prejudice him in any way.’” Eason v. United States, 912 F.3d
1122, 1123 (8th Cir. 2019), quoting United States v. Olunloyo, 10 F.3d 578, 581-82
(8th Cir. 1993). Here, as in Eason, 912 F.3d at 1123, Smith did not challenge the

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validity of his Count 3 conviction for being a felon in possession of a firearm, and
reducing his ACCA sentence on Count 3 would not affect his total sentence because
the concurrent 220-month sentence on Count 1 and consecutive 60-month sentence
on Count 2 are still valid.

       On appeal, Smith argues that he is entitled to have his entire sentence vacated
because the concurrent sentences on Counts 1 and 3 are “interdependent.” Smith
repeatedly asserts that his sentence on Count 1 “was impacted by the unlawful ACCA
enhancement” on Count 3. But repeating this assertion does not make it true. Under
the Guidelines in effect when he was sentenced, Smith’s total offense level on Count
1 standing alone, with the career offender enhancement, was 37; on Count 3 standing
alone, with the ACCA enhancement, it was 34. Compare USSG § 4B1.1(b)(1), with
USSG § 4B1.4(a)(3). The enhancements put Smith in criminal history category VI
on both counts. See USSG §§ 4B1.1(b), 4B1.4(c)(2). The Count 1 enhanced offense
level of 37 resulted in an advisory guidelines range of 360 months to life under
§ 4B1.1(c)(3); § 4B1.1(c)(2) added the mandatory consecutive 60-month sentence for
Count 2, making the advisory guidelines range for Count 1 alone 420 months to life.
Counts 1 and 3 were grouped under § 3D1.2(c), resulting in concurrent ranges of 420
months to life for each Count. Thus, Count 3 did not increase the guidelines sentence
for Count 1; if anything, the opposite was true. Moreover, the typical impact of an
ACCA enhancement -- its mandatory minimum fifteen-year sentence -- had no impact
in this case because Smith’s total sentence was far above fifteen years, before and
after the district court granted a 200-month downward variance. Indeed, at
sentencing, defense counsel urged the court to impose a fifteen-year sentence.

      Smith further argues the district court abused its discretion in applying the
concurrent sentence doctrine because, with his Count 3 sentence vacated under
Johnson, he is entitled to a full resentencing under the sentencing package doctrine.
At that resentencing, Smith asserts, the current career offender guidelines would
apply. Therefore, because the Sentencing Commission eliminated the career offender

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residual clause after Johnson, his Count 1 sentence would not be subject to the career
offender enhancement. This establishes prejudice, Smith argues, so the concurrent
sentence doctrine does not apply. He urges us to vacate his sentence and remand for
de novo resentencing.

       Under the sentencing package doctrine, when a defendant successfully attacks
one but not all counts of conviction on appeal, we “may vacate the entire sentence on
all counts so that, on remand, the trial court can reconfigure the sentencing plan to
ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C.
§ 3553(a).” United States v. McArthur, 850 F.3d 925, 943 (8th Cir. 2017), quoting
Greenlaw v. United States, 554 U.S. 237, 253 (2008). Here, Smith’s conviction on
Count 3 was not vacated, and the district court properly held that the Count 1
sentence was not open to challenge under Beckles. At the initial sentencing, the
district court emphasized that the concurrent 220-month sentences on Counts 1 and
3 were based on the § 3553(a) sentencing factors, not on the ACCA and career
offender determinations. The court explicitly stated “that it would have imposed the
same sentence had it sustained defendant’s . . . objections.” Thus, the record gives
us no basis to conclude that the district court abused its discretion in not ordering a
complete resentencing. See Wright v. United States, 902 F.3d 868, 872-73 (8th Cir.
2018); cf. United States v. Dace, 842 F.3d 1067, 1069-70 (8th Cir. 2016) (career
offender error harmless where district court “made clear that it relied on the § 3553(a)
factors -- independent of the Guidelines range”).

           II. The Ineffective Assistance of Appellate Counsel Issue.

       Smith argues that his appellate counsel provided constitutionally ineffective
assistance by failing to inform this court on direct appeal that Smith’s sentence might
be affected by the Supreme Court’s impending decision in Johnson. The district court
ruled that Smith failed to establish that appellate counsel provided ineffective
assistance, relying on our prior decisions holding that “[t]he failure of counsel to

                                          -5-
anticipate a rule of law that has yet to be articulated does not render counsel’s
performance professionally unreasonable.” Allen v. United States, 829 F.3d 965, 967
(8th Cir. 2016) (citations omitted). We agree.

       There is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland v. Washington, 466 U.S.
668, 689 (1984). Smith argues that appellate counsel knew or should have known
that the Supreme Court had granted certiorari in Johnson and that its decision could
potentially impact whether the district court erred in overruling Smith’s objection to
counting his fleeing convictions as violent felonies and crimes of violence. However,
we have upheld the denial of appellate ineffective assistance claims in analogous
circumstances. See Walker v. United States, 810 F.3d 568, 577 (8th Cir. 2016);
Johnson v. Armontrout, 923 F.2d 107 (8th Cir. 1991).

     For the foregoing reasons, the judgment of the district court denying Smith’s
motion to vacate his sentence is affirmed. We deny his Motion To Supplement the
Record on Appeal.

KELLY, Circuit Judge, dissenting.

       Today, the court leaves in place a sentence that all agree is unlawful; the
statutory maximum sentence on Smith’s ACCA count is 120 months’ imprisonment,
yet Smith received a sentence of 220 months. To do so, the court relies on the
concurrent sentence doctrine. In my view, that doctrine is inapplicable here, so I
respectfully dissent.

      Because Smith’s § 2255 petition was successful on the merits, the district court
could invoke the concurrent sentence doctrine to deny the petition only if a ruling in
Smith’s favor “would not reduce the time he is required to serve or otherwise
prejudice him in any way.” Eason, 912 F.3d at 1123 (cleaned up). But it is possible

                                         -6-
that a ruling in Smith’s favor would reduce the time he is required to serve. “[A]
district court proceeding under § 2255 may vacate the entire sentence so that the
district court can reconfigure the sentencing plan to satisfy the sentencing factors in
18 U.S.C. § 3553(a).” United States v. Tidwell, 827 F.3d 761, 764 (8th Cir. 2016)
(cleaned up). The current version of the Guidelines would apply upon resentencing.
See id. at 764 & n.3 (explaining that when resentencing a defendant under § 2255, a
district court must apply “the guidelines in effect at the time of the resentencing, not
at the time of the original sentencing”).

      Under the current Guidelines, Smith would not qualify for a career offender
enhancement on Count 1, yielding a recommended Guidelines range significantly
lower than the range applicable at his original sentencing.2 Smith received a 140-
month downward variance at his original sentencing; to reimpose the same term of
imprisonment upon resentencing would likely require the district court to vary
upwards, a variance that might prove difficult to justify.

      United States v. Fletcher provides a useful illustration. Fletcher filed a
meritorious § 2255 petition challenging the ACCA enhancement on one count of
conviction; the district court denied the petition based on the concurrent sentence
doctrine. Order at 3–4, United States v. Fletcher, No. 11-cr-193 (D. Minn. May 9,
2016), ECF No. 65. On appeal, we granted the government’s motion to vacate the
judgment, as the government noted that Fletcher’s sentence would exceed the


      2
       The current Guidelines omit the residual clause that originally allowed for the
career offender enhancement. Based on the district court’s original non-career
offender calculations of a total offense level of 30 and a criminal history category of
IV, I estimate a new Guidelines range (including the mandatory consecutive 60-
month sentence for Count 2) of 195 to 228 months, as compared to Smith’s original
Guidelines range of 420 months to life. Of course, other changes to the Guidelines
since Smith’s original conviction could result in a different base offense level or
criminal history category.

                                          -7-
recommended Guidelines range under the current version of the Guidelines and
therefore application of the concurrent sentencing doctrine was “questionable.” See
United States v. Fletcher, No. 16-3025 (8th Cir. 2017). On remand, the district court
reduced Fletcher’s overall sentence by 80 months. See Resentencing Judgment,
No. 11-cr-193 (D. Minn. July 27, 2017), ECF No. 90.

       As the court acknowledges, Smith’s ACCA sentence is no longer valid. As a
result, I would vacate it. And because it is possible for the district court to sentence
Smith to a shorter term of imprisonment, I would remand the case to the district court
for resentencing.
                       _______________________________




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