                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0042p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                               Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 06-2605
          v.
                                                      ,
                                                       >
 JOSHUA BRUCE VICOL,                                  -
                              Defendant-Appellee. -
                                                     N
                       Appeal from the United States District Court
                  for the Western District of Michigan at Grand Rapids.
                    No. 03-00202—Richard A. Enslen, District Judge.
                                  Submitted: December 6, 2007
                              Decided and Filed: January 24, 2008
                   Before: KENNEDY, MARTIN, and COLE, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: Timothy P. VerHey, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellant. William J. Stevens, Lakeside, Michigan, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        BOYCE F. MARTIN, JR., Circuit Judge. Joshua Bruce Vicol was convicted of one count
of kidnaping in violation of 18 U.S.C. § 1201(a)(1) and sentenced to 188 months in prison. The
government appeals the sentence imposed by the district court, arguing that the sentencing
guidelines range was improperly calculated. According to the government, this error seriously
affected the sentence and constitutes reversible error. We agree with the government, and VACATE
Vicol’s sentence and REMAND this case for resentencing.
                                                  I.
       On the evening of July 24, 2003, Vicol, who had recently been released from the Kalamazoo
County Jail, arranged to meet with his ex-girlfriend and the mother of his child, Brooke Firestone.
The two planned to discuss the possibility of reconciling their relationship. Firestone and her friend
Theresa Volker met Vicol at a party. Vicol and Firestone spoke for a while, but at some point he
became angry and physically attacked Firestone. Other partygoers pulled Vicol off of Firestone, at
which time Firestone and Volker retreated to Volker’s car and left the party.


                                                  1
No. 06-2605           United States v. Vicol                                                  Page 2


        Vicol got into his own car and pursued the women. He repeatedly rammed his car into theirs
until they pulled over into a parking lot. Vicol then ran over to Volker’s car and using a pair of
shears, smashed in the driver’s side window and opened the door. Vicol ordered Volker into the
back seat, and slashed her face with the shears. She suffered a deep cut along her jawline, resulting
in several stitches and a permanent scar.
        With Volker in the backseat, Vicol turned his attention to his ex-girlfriend, Firestone. He
smashed her face into the dashboard several times, breaking one of her teeth. He stabbed her in the
leg, and cut off her hair, telling her that he wanted to make her ugly. He told both women they were
going to die that night.
        Vicol drove the women to a hotel. He called Volker’s father and informed him that she had
been drinking and would not be coming home that night. After a few hours, Vicol released Volker,
but refused to let Firestone go. After releasing Volker, Vicol took Firestone to a different hotel in
Michigan City, Indiana. Finally, after being contacted by the Federal Bureau of Investigation,
Vicol’s family convinced Vicol to give himself up.
       Vicol eventually confessed to a Kalamazoo Police Detective to kidnaping both women, but
refused to put his confession in writing. After being indicted on one count of kidnaping in violation
18 U.S.C. § 1201(a)(1), Vicol proceeded to trial where he presented an insanity defense. He was
convicted on November 15, 2004.
        Vicol’s sentencing hearing occurred on July 6, 2005. The Presentence Investigation Report
stated that the sentencing guidelines called for a base offense level of 32 under § 2A4.1(a)(1). The
Report also classified Vicol as having a Criminal History of V due to his 18 previous convictions.
The base offense level and the criminal history category yielded a suggested guidelines range of 360
months to life in prison.
         Vicol argued that the previous guidelines manual had assessed a base offense level of only
24 for kidnapping, and that level was a more appropriate sentence for the crime committed. In what
appears to be a moment of confusion, the district court misunderstood Vicol’s argument, and
believed that the guideline increase came after the crime had been committed. Relying on this
Court’s decision in United States v. Davis, 394 F.3d 340 (6th Cir. 2005), the district court felt
compelled to use a base offense level of 24 rather than 32 based on its inaccurate belief that an
earlier version of the guidelines was in effect at the time of Vicol’s crime. Using the lower offense
level, the guidelines calculation yielded a range of 151 to 188 months. The district court concluded
after examining the other § 3553(a) factors that Vicol should be sentenced to the maximum
sentenced provided by the guidelines, 188 months.
        One day after Vicol’s sentencing hearing, on July 7, 2003 the government filed a motion to
correct the sentence under Federal Rule of Criminal Procedure 35(a). The government argued that
the district court had made a mistake when it determined the base offense level under the guidelines.
The 2002 guidelines manual, which was in effect at the time of Vicol’s crime, had been amended
effective May 30, 2003. This amendment increased the base offense level under guideline
§ 2A4.1(a) from 24 to 32. According to the government’s brief on appeal, the confusion occurred
because the amendment was not incorporated into the text of the 2002 Manual, but was instead
relegated to Appendix C, which collects subsequent amendments.
       In response to the government’s motion, the district court scheduled a new sentencing
hearing for July 18, 2005. At the hearing, the district court first ruled that it had jurisdiction to
resentence Vicol, and then imposed a sentence of 360 months.
      Vicol appealed the sentence, and this Court ruled that under Federal Rule of Criminal
Procedure 35, the district court did not have jurisdiction to resentence Vicol more than seven days
No. 06-2605           United States v. Vicol                                                   Page 3


after the original sentence was imposed. United States v. Vicol, 460 F.3d 693, 695-96 (6th Cir.
2006). The 360-month sentence was vacated and the case was remanded with instructions to impose
the original sentence of 188 months. This Court did note that both parties would have the
opportunity to appeal the original sentence once entered by the district court. Id. at 697.
      On remand, the district court entered the original 188-month sentence and the government
now appeals that sentence.
                                                  II.
        “Regardless of whether the sentence imposed is inside or outside the Guidelines range, [this]
court must review the sentence under an abuse-of-discretion standard.” Gall v. United States, 128
S. Ct. 586, 597 (2007). We may hold that a district court abused its discretion if it committed one
of the following “significant procedural error[s]”: improperly calculating the guidelines range,
treating the guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence – including
an explanation for any deviation from the guidelines range. Id.
        Before Gall was decided, this Circuit had held that “where a district court makes a mistake
in calculating a guidelines range for purposes of determining a sentence under section 3553(a), we
are required to remand for resentencing unless we are certain that any such error was harmless.”
United States v. Duckro, 466 F.3d 438, 446 (6th Cir. 2006). Here, it is obvious the district court
improperly calculated the guidelines range. The district court mistakenly believed an earlier version
of the guidelines was in effect at the time of the crime, and thus calculated Vicol’s sentence with a
lower base offense level and a lower sentencing range. Realizing its mistake, the district court
attempted to resentence Vicol under the properly calculated guidelines range, but by then the district
court had lost jurisdiction. See Vicol, 460 F.3d at 695-96.
        The district court’s post hoc actions to correct its mistake show that this was not harmless
error. In order to be harmless, the error could not have affected the district court’s selection of the
sentence imposed. United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (citing Williams
v. United States, 503 U.S. 193, 203 (1992)). But the record and transcript of the district court’s two
sentencing hearings show that the district court was concerned with the violent nature of Vicol’s
offense as well as his lengthy criminal past. When given the chance to increase the sentence based
on the proper guidelines calculation, the district court took that opportunity to sentence Vicol to 360
months instead of the 188 months previously imposed. It is clear that the miscalculation of the
sentencing guidelines affected the district court’s decision and was thus not harmless error.
                                                 III.
         We fully realize that this is a case of terrible judicial inefficiency. Not only has Vicol’s
sentence status been held in limbo for too long, but the judicial resources of this Court have now
been expended twice on this matter. We cast not any blame on the district court, who attempted to
correct its mistake. In such a situation where counsel believes the district court has made a mistake,
but also realizes the district court would lose jurisdiction if a defendant is not resentenced within
seven days, the proper course of action is to petition this Court seeking an immediate remand to the
district court so that the mistake could be corrected.
No. 06-2605          United States v. Vicol                                                 Page 4


                                               IV.
        Based on the foregoing, we hold that the district court abused its discretion in improperly
calculating the correct guidelines sentence range as required under § 3553(a). The miscalculation
was not harmless as it certainly affected the district court’s decision in sentencing Vicol. We
VACATE Vicol’s sentence, and REMAND to the district court for resentencing, taking into account
the properly calculated non-mandatory guidelines range.
