                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0584n.06

                                           No. 16-6238

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                  Oct 20, 2017
UNITED STATES OF AMERICA,                                )                   DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )      ON APPEAL FROM THE
v.                                                       )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE EASTERN
ROBERT FRANKLIN FOX,                                     )      DISTRICT OF KENTUCKY
                                                         )
       Defendant-Appellant.                              )



BEFORE: MOORE, WHITE, and DONALD, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Robert Fox pleaded guilty to one count of

possession with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and 851,

and was sentenced to 150 months in prison. This court vacated the sentence and remanded for

further proceedings. On remand, the district court re-imposed the 150-month sentence. In his

second appeal, Fox argues that the district court misinterpreted this court’s mandate as a limited,

rather than general, remand, and that his sentence is procedurally and substantively

unreasonable. We AFFIRM.

                                                I.

       On March 21, 2014, Nicholasville, Kentucky police officers responded to a call regarding

suspicious activity in a residential area and encountered Fox and Lacey Dewitt. Fox was in

possession of $3,456.50 and Dewitt consented to a search of her purse and a bag containing pills
No. 16-6238, United States v. Fox


and bottles of oxycodone hydrochloride solution. Investigation revealed that before police

arrived Fox had given Dewitt the bag of pills for her to hide.1 PID 184/PSR.

          At sentencing, the district court adopted the PSR’s calculations: a base offense level of

26, based on drug quantity, an increase to 34 based on the determination that Fox was a career

offender under USSG § 4B1.1(b)(2); and a three-level reduction for acceptance of responsibility,

USSG § 3E.1.1(b), resulting in a total offense level of 31.2 Combined with criminal-history

category VI, the resulting guidelines range was 188 to 235 months. PID 185-86, 195/PSR. In

his sentencing memorandum, Fox acknowledged that he is a career offender and requested a

120-month sentence via a departure3 or variance from the career-offender guidelines range of

188 to 235 months. PID 104-107, 110/Def. Sent. Memo.

          The district court accepted Fox’s arguments against the career-offender range and chose

to sentence Fox at offense level 26, which, combined with criminal-history category VI, yielded

a guidelines range of 120 to 150 months. The court imposed a 150-month sentence. PID 164-

65/Judgment. Fox appealed, arguing that the district court plainly erred by failing to reduce

offense-level 26 by three levels for his acceptance of responsibility, which would have yielded a

guidelines range of 92 to 115 months.




1
    Fox did not contest these facts, which are taken from the PSR.
2
    The PSR applied the 2014 Guidelines Manual. PID 185/PSR ¶ 7.
3
  As pertinent here, Fox objected to ¶ 100 of the PSR, in which the Probation Officer stated that he was
aware of no factors that would justify a downward departure. PID 118. In response to Fox’s objection,
the Probation Officer stated, “The defendant’s position on this matter is noted for the [PSR],” referred to
Fox’s objection as “unresolved,” and noted that the objection “will not affect the guideline calculations.”
PID 210/PSR addendum.

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No. 16-6238, United States v. Fox


This Court’s Order Vacating Fox’s Sentence and Remanding

       By per curiam order entered under Fed. R. App. P. 34(a), [a panel of] this court [(Cole,

Siler, Stranch)] vacated Fox’s sentence and remanded for further proceedings, noting:

                Fox appeals . . . [arguing] that the district court erroneously calculated his
       guideline range by not applying a three-level reduction to his base offense level of
       26 for his acceptance of responsibility.
       ....
                Fox argues that the district court plainly erred by not reducing his base
       offense level for his acceptance of responsibility. As set forth above, the district
       court initially increased Fox’s base offense level of 26 to 34 and then reduced his
       offense level by three for Fox’s acceptance of responsibility, resulting in a total
       offense level of 31 and a guideline range of 188 to 235 months. But then the
       district court announced that it was not sentencing Fox as a career offender and
       instead was going to use Fox’s base offense level of 26 to sentence him, resulting
       in a guideline range of 120 to 150 months. The district court did not reduce Fox’s
       offense level for his acceptance of responsibility; however, Fox did not object.

              An error occurred that was obvious or clear. The district court initially
       noted that Fox would be given a three-level reduction for his acceptance of
       responsibility, but after stating that it would not be sentencing Fox as a career
       offender, it did not apply the reduction or provide its reasons for rejecting the
       reduction. Had the reduction been applied, Fox’s total offense level would have
       been 23, which when combined with his criminal history category of VI, would
       have resulted in a guideline range of 92 to 115 months. Fox was sentenced to 150
       months. Thus, Fox may have received a shorter sentence and his substantial
       rights were affected. Although, arguably, the district court intended to vary
       downward, the words chosen by the district court are inconsistent with the
       application of a variance. In these circumstances, the judicial proceeding may
       have been unfair.

               Accordingly, we VACATE Fox’s sentence and REMAND this matter to
       the district court for further proceedings.

Order entered 5/24/16, Docket No. 15-5619/cm/ecf R. 64 (emphasis added).

Resentencing

       The district court held a resentencing hearing on August 1, 2016, at which it clarified that

it had applied the three-level acceptance-of-responsibility reduction when it decreased Fox’s

offense level from 34 to 31, and then had varied downward by five offense levels, from 31 to 26,

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No. 16-6238, United States v. Fox


which, with a criminal-history category VI, yielded a 120-to-150 month guidelines range. The

district court explained that it varied downward based on Fox’s arguments in his sentencing

memorandum and at sentencing regarding the § 3553(a) factors, which, the district court pointed

out, persuaded it not to impose a sentence under the 188-to-235 month career-offender guidelines

range. PID 369-70/Resentencing Hrg. 8/1/16. The district court entered an order clarifying its

original sentence, which ended by denying Fox’s “motion for a further reduction due to his

acceptance of responsibility,” and reinstating the 150-month sentence.            PID 352-55/Order

entered 8/4/16.

            II. Career Offender Status and Procedural Unreasonableness

       Fox first argues that his sentence is procedurally unreasonable because he was not a

career offender when he was resentenced, but was nevertheless sentenced as one. Fox concedes

he was correctly classified as a career offender at his first sentencing; he relies on a change to the

definition of “crime of violence” that eliminated burglary from the list of enumerated offenses

effective August 1, 2016. See USSG § 4B1.2(a)(2) and Amendment 798 (Supplement to 2015

Supplement to Appendix C, at 7-8, 11-12).

       We review sentences for procedural and substantive reasonableness. United States v.

Freeman, 640 F.3d 180, 185 (6th Cir. 2011); see also Gall v. United States, 552 U.S. 38, 51, 128

S. Ct. 586, 169 L. Ed. 2d 445 (2007). A sentence is procedurally unreasonable where the district

court fails to properly calculate the guidelines range, treats the guidelines as mandatory, fails to

consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to

adequately explain the chosen sentence. See United States v. Jeter, 721 F.3d 746, 756 (6th Cir.

2013). “This review is conducted under the deferential abuse-of-discretion standard.” United

States v. Freeman, 640 F.3d 180, 185 (6th Cir. 2011).           Review of unpreserved claims of


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No. 16-6238, United States v. Fox


procedural unreasonableness is generally for plain error, United States v. Wallace, 597 F.3d 794,

802 (6th Cir. 2010) (citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en

banc)), but Fox contends that we should review for abuse of discretion because the district court

failed to clearly ask for objections to the sentence that had not been previously raised and thus

did not satisfy Bostic.4 Appellant Br. 13.


        Regardless whether we review for plain error or abuse of discretion, Fox’s argument that

the district court should have applied the Supplement to the 2015 Guidelines Manual fails. First,

Fox cites USSG § 1B1.11(a), which provides simply that “[t]he court shall use the Guidelines

Manual in effect on the date that the defendant is sentenced.” Next, Fox cites United States v.

Davis, 397 F.3d 340 (6th Cir. 2005), but Davis is inapposite because the defendant’s argument

there was that he should have been sentenced under the guidelines in effect at the time he

committed the offense. We noted in Davis:


        Generally, the district court is instructed to apply the version of the Guidelines in
        place at the time of sentencing. [USSG] § 1B1.11(a) (2002). However, the
        Guidelines clearly instruct the court to apply the version in place at the time the
        defendant’s offense was committed if applying the current Guidelines would
        amount to a violation of the ex post facto clause . . . The ex post facto clause is
        implicated where a law punishes retrospectively; “[a] law is retrospective if it
        ‘changes the legal consequences of acts completed before its effective date.’”

Id. at 346–47 (citations omitted). Davis is inapposite.




4
  Under Bostic, a district court must “ask the parties whether they have any objections to the sentence . . .
that have not previously been raised.” United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en
banc). The purpose of the Bostic question is twofold: to allow parties a chance to raise objections not
previously raised, United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011), and, critically, to allow
the district court an opportunity to address and “correct[ ] any error ... on the spot.” Bostic, 371 F.3d at
873.

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No. 16-6238, United States v. Fox


       Further, 18 U.S.C. § 3553(a)(4)(A)(ii), which Fox also cites, simply provides that in

imposing a sentence, a sentencing court consider:

               (1) the kinds of sentence and the sentencing range established for—

                       (A) the applicable category of offense committed by the
                           applicable category of defendant as set forth in the
                           guidelines—

                       (i)     issued by the Sentencing Commission pursuant to section
                               994(a)(1) of title 28, United States Code, subject to any
                               amendments made to such guidelines by act of Congress
                               (regardless of whether such amendments have yet to be
                               incorporated by the Sentencing Commission into
                               amendments issued under section 994(p) of title 28); and

                       (ii)    that, except as provided in section 3742(g), are in effect on
                               the date the defendant is sentenced . . .

18 U.S.C. § 3553(a)(4)(A). But Section 3742(g), referenced in § 3553(a)(4)(A)(ii), makes clear

that a sentencing court on remand “shall apply the guidelines . . . that were in effect on the date

of the previous sentencing of the defendant prior to the appeal, together with any amendments

thereto by any act of Congress that was in effect on such date.”            18 U.S.C.A. § 3742(g)

(emphasis added); see also United States v. Taylor, 648 F.3d 417, 424 (6th Cir. 2011) (“on

remand for resentencing, the court should apply the version of the guidelines that properly

governed the original sentencing.”) (quoting United States v. Rorrer, 161 F. App’x 518, 521 (6th

Cir. 2005)); United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (citing § 3742(g) and

noting, “the correct approach for a district court to take on remand is to apply the Guidelines in

effect at the time of a defendant’s original sentencing.”).

       Thus, the district court neither plainly erred nor abused its discretion by applying on

remand the 2014 Guidelines Manual that was in effect at Fox’s original sentencing, and

continuing to classify Fox as a career offender. Fox’s procedural unreasonableness claim fails.



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No. 16-6238, United States v. Fox


           III. Failure to Consider the Relevant § 3553(a) Factors and Policy Statements

       Fox next asserts that his sentence is procedurally and substantively unreasonable because

the district court failed to consider the applicable § 3553(a) factors or relevant policy statements,

and his 150-month sentence is greater than necessary to achieve the sentencing goals set forth in

§ 3553(a). Appellant Br. 18-22.

       “A sentence is substantively unreasonable if the district court selects a sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing

factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v.

Shaw, 707 F.3d 666, 674 (6th Cir. 2013) (internal quotation marks omitted).              We review

challenges to the substantive reasonableness of a sentence for abuse of discretion. United States

v. Taylor, 800 F.3d 701, 713 (6th Cir. 2015).


       Fox complains that the district court said virtually nothing about the sentencing factors at

his first sentencing and little more at his resentencing, and that what the district court did say is

insufficient to permit meaningful appellate review. We disagree.

       At Fox’s original sentencing, the district court considered the advisory guidelines range,

Fox’s sentencing memorandum, his extensive arguments for a below-guidelines sentence, and

the § 3553(a) factors.     As the district court explained at the resentencing hearing, Fox’s

arguments regarding the § 3553(a) factors persuaded the court not to sentence him within the

188-to-235-month career-offender guidelines range. At the conclusion of Fox’s resentencing

hearing, the district court incorporated its prior analysis of the § 3553(a) factors, noting,

“I thought that a sentence as a career offender would be too high. That’s part of my job under

3553(a) is to determine your family history, among other things . . . that Mr. Allen pointed out

. . . before the court in his memorandum; and so I gave you a five-level variance.” PID 370.

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No. 16-6238, United States v. Fox


       Fox argues that the district court was required to do more, but a sentencing court need not

make express on-the-record findings on each § 3553(a) factor.          United States v. Coleman,

835 F.3d 606, 616 (6th Cir. 2016). And Fox’s argument that the district court should have

discussed policy statement § 4A1.3, which his sentencing memorandum raised as a basis for a

downward departure, is not persuasive given that the district court stated at sentencing that it had

read Fox’s sentencing memorandum, and the court in fact varied, although it did not depart, from

the guidelines range. PID 222-23 (“I read your sentencing memorandum.”)

       Fox also claims that his sentence is substantively unreasonable.           Because he was

sentenced below his guidelines range, he has a particularly demanding burden in showing his

sentence is unreasonable. United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013). Fox’s only

argument asserting substantive unreasonableness is that the district court failed to consider

relevant § 3553(a) factors, a claim we have rejected.

                                      IV. Scope of Remand

       Fox’s final argument is that “the district court presumed its hands were tied and treated

this Court’s mandate as a limited remand rather than a general remand,” when the mandate was

“very broad in scope and . . . [t]here is nothing in [the] mandate to indicate an intent to limit the

scope of the district court’s review.” Appellant Br. 23.

       We review the scope of a remand de novo. United States v. Orlando, 363 F.3d 596, 600

(6th Cir. 2004).

       In this circuit, the criteria to establish a limited versus general remand are well
       settled and, pursuant to 28 U.S.C. § 2106, appellate courts have broad discretion
       in defining the scope of a given remand. See [United States v.] Campbell,
       168 F.3d [263,] 265 [(6th Cir. 2012)] (citing United States v. Moore, 131 F.3d
       595, 597 (6th Cir. 1997)). A limited remand must “explicitly outline the issues to
       be addressed by the district court and create a narrow framework within which the
       district court must operate. General remands, in contrast, give district courts
       authority to address all matters as long as remaining consistent with the remand.”

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No. 16-6238, United States v. Fox


        Id. at 265 (citation omitted). A “majority of the circuits that have spoken on this
        issue, including this one, follow a basic rule that a district court can review
        sentencing matters de novo unless the remand specifically limits the lower court’s
        inquiry.” Id. Further, “in light of the general principle of de novo consideration
        at resentencing, this court should leave no doubt in the district judge’s or parties’
        minds as to the scope of the remand. The language used to limit the remand
        should be, in effect, unmistakable.” Id. at 268.

United States v. Obi, 542 F.3d 148, 153–54 (6th Cir. 2008).

        Our opinion did not limit the scope of the district court’s sentencing authority on remand.

It is unclear, however, whether the district court actually thought it was subject to a limited

remand and its “hands were tied.” In any event, any error in the district court’s perception of the

scope of the remand was harmless because the only issue Fox claims he would have raised if

given the opportunity—that the district court should have rescored the Guidelines using the

Supplement to the 2015 Guidelines Manual—lacks merit for the reasons discussed. See United

States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (“Under the harmless error test, a remand

for error at sentencing is required unless we are certain that any such error was harmless–i.e., any

such error ‘did not affect the district court’s selection of the sentence imposed.’”) (quoting

Williams v. United States, 503 U.S. 193 (1992)). Further, to the extent Fox implies that the

court’s alleged misunderstanding of the remand led it to unfairly deny an adjournment,5 counsel


5
 On the Friday before the August 1st resentencing hearing, defense counsel filed a “Motion to Continue
Re-sentence Hearing,” asserting:
        The . . . Court of Appeals remanded this matter . . . for re-sentencing. Although
        undersigned counsel did not serve as Mr. Fox’s counsel on appeal, the Court reappointed
        him as Mr. Fox’s counsel for purposes of re-sentencing on July 26, 2016.
        At the time of his reappointment, undersigned counsel was out of the office. He did not
        return to the office until today and has not had an opportunity to meet, or have an in-
        depth discussion, with his client regarding the re-sentencing. Thus, undersigned counsel
        respectfully requests a reasonable continuance of the sentencing hearing . . . to permit
        him to meet with Mr. Fox to discuss his re-sentencing.
PID 340. The district court denied the motion by order entered the same day:
        There is nothing new to discuss, the PSR has not changed nor have the guidelines. The
        matter was remanded for the undersigned to explain why the defendant was not entitled
                                                  -9-
No. 16-6238, United States v. Fox


was familiar with the case because he had represented Fox at the first sentencing, and Fox has

shown no prejudice.

       For the reasons stated, we AFFIRM Fox’s 150-month sentence.




       to a further three level reduction in his offense level when he had already been granted an
       earlier reduction for acceptance of responsibility.
PID 343.
                                                  -10-
