                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0225p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                ┐
                  Plaintiff-Appellant/Cross-Appellee,     │
                                                          │
                                                           >      Nos. 17-5904/5905/5906
        v.                                                │
                                                          │
                                                          │
 STEPHEN MURRAY MITCHELL,                                 │
              Defendant-Appellee/Cross-Appellant.         │
                                                          ┘

                            Appeal from the United States District Court
                         for the Western District of Tennessee at Memphis.
             Nos. 2:17-cv-02341; 2:99-cr-20272-1—Samuel H. Mays Jr., District Judge.

                                    Argued: October 4, 2018

                              Decided and Filed: October 10, 2018

                 Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.
                                  _________________

                                           COUNSEL

ARGUED: Naya Bedini, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee,
for Appellant/Cross-Appellee. Bradley Girard, GEORGETOWN UNIVERSITY, Washington,
D.C., for Appellee/Cross-Appellant. ON BRIEF: Tony R. Arvin, UNITED STATES
ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellant/Cross-Appellee. Amit R. Vora,
Brian Wolfman, GEORGETOWN UNIVERSITY, Washington, D.C., for Appellee/Cross-
Appellant.
                                       _________________

                                            OPINION
                                       _________________

       THAPAR, Circuit Judge. The district court granted Stephen Mitchell habeas relief and
gave him a sentence of time-served with three years of supervised release. Both Mitchell and the
 Nos. 17-5904/5905/5906              United States v. Mitchell                             Page 2


United States appealed. Since their respective appeals were filed, this circuit has decided
substantially-similar cases. Bound by these recent precedents, we affirm the district court in part
and reverse in part.

                                                I.

       Stephen Mitchell has a long history of run-ins with the law. Among other violations,
Mitchell’s record features three violent felony offenses: two Tennessee aggravated assault
convictions and one Tennessee burglary conviction.        And more recently, a jury convicted
Mitchell of being a felon in possession of ammunition. 18 U.S.C. § 922(g). At the time of his
sentencing, Mitchell’s three prior convictions qualified as “violent” felonies under the Armed
Career Criminal Act (ACCA)—meaning Mitchell was subject to the ACCA’s enhanced
sentencing.    Applying the ACCA, the trial judge sentenced Mitchell to 250 months of
imprisonment and three years of supervised release. But after the Supreme Court invalidated the
ACCA’s so-called residual clause as unconstitutionally vague, and then applied that holding
retroactively, Mitchell filed for habeas relief. See Welch v. United States, 136 S. Ct. 1257, 1265
(2016); Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Mitchell argued that without the
ACCA’s residual clause, his prior felonies no longer qualified as “violent” under the ACCA.
Therefore, he said his 250-month, ACCA-enhanced sentence was invalid. He argued that instead
his sentence should have been ten years (120 months) at most.

       The district court agreed and granted Mitchell habeas relief. Specifically, the court found
that neither his two aggravated assault convictions nor his burglary conviction could be
considered “violent” under the ACCA. Thus, the ACCA no longer applied to his sentence. But
the district court faced the question of what form of relief to grant Mitchell. Without the ACCA,
the maximum sentence Mitchell could have served for his felon-in-possession conviction was ten
years. But Mitchell had already served seventeen years by the end of his habeas proceeding. So
the district court decided to release Mitchell from custody and correct his sentence to “time-
served.” The district court also re-imposed Mitchell’s original three years of supervised release.

       The government and Mitchell cross-appealed.
 Nos. 17-5904/5905/5906             United States v. Mitchell                            Page 3


                                               II.

       The government argues that Mitchell’s prior convictions qualify as “violent” under the
ACCA. But while its appeal was pending, this court held that the “building provision” of
Tennessee’s 1973 version of third-degree burglary could not be considered “violent” under the
ACCA. Cradler v. United States, 891 F.3d 659, 671 (6th Cir. 2018) (applying the modified-
categorical approach and finding the statute overbroad). Since Mitchell was convicted under the
nearly-identical “building provision” of the 1982 version of third-degree burglary, Cradler
decides this case: Mitchell’s burglary conviction is not a “violent” felony under the ACCA.
Compare Tenn. Code Ann. § 39-904 (1973), with Tenn. Code Ann. § 39-3-404 (1982).

       Without this burglary conviction, the ACCA no longer applies to Mitchell. The ACCA
requires three “violent” felonies before it can enhance a person’s sentence.        But, as the
government concedes, if Mitchell’s burglary conviction is not considered “violent,” then he only
has two “violent” convictions left—his aggravated assaults. Therefore, the ACCA no longer
applies to Mitchell’s sentence, and habeas relief was warranted.

                                               III.

       Mitchell makes two arguments challenging the specific habeas relief that he obtained.
We address each in turn.

       Time served. Mitchell contends that the district court erred in giving him a “time-served”
sentence as part of his habeas relief. Time-served, Mitchell says, equals the seventeen years he
served and thus is “illegal.” Although Mitchell will be released either way, he wishes the record
to reflect an appropriate non-ACCA sentence.

       Once again, this court decided this precise issue while Mitchell’s appeal was pending. In
United States v. Nichols, this court held that a “time-served” sentence corresponds with the
actual months that a defendant was imprisoned. 897 F.3d 729, 733–34 (6th Cir. 2018). In that
case, Nichols initially received a twenty-four-year sentence. Id. at 732. This sentence reflected
an enhancement under the ACCA that was later found inapplicable after the Supreme Court
invalidated the ACCA’s residual clause. Id. at 732–33. So Nichols successfully obtained habeas
 Nos. 17-5904/5905/5906                United States v. Mitchell                            Page 4


relief after serving twelve years of his original sentence.        When the district court granted
Nichols’s habeas petition, it corrected his sentence by changing it to a “time-served” sentence.
Id. at 733. That “time-served” sentence thus equaled the twelve years Nichols had already
served.

          But this court held that such a “time-served” corrected sentence is unlawful. Absent the
ACCA enhancement, Nichols could have received only a ten-year-maximum sentence. But
when the district court corrected his sentence to remove the enhancement, it gave Nichols “time-
served”—or, as discussed above, twelve years. This corrected sentence thus exceeded the
statutory maximum by two years. And any sentence “in excess of the statutory maximum” is
unlawful. Id. at 735. So this court concluded that “time-served” is inappropriate relief when the
habeas petitioner has served a sentence greater than the statutory maximum.

          And, in reviewing Nichols’s habeas petition, the court also determined that corrected
sentences are subject to “reasonableness review.” But in that reasonableness review, the Nichols
court recognized the distinction between a full-on resentencing and a corrected sentence. See id.
at 738; United States v. Hadden, 475 F.3d 652, 667 (4th Cir. 2007) (stating that “resentencing”
and “correct[ing]” a sentence necessarily “refer[] to different concepts”). And district courts
have discretion to choose between them based on the individual habeas petitioner’s
circumstances. 28 U.S.C. § 2255(b) (allowing courts to choose between four categories of relief:
(1) discharge a petitioner, (2) grant a petitioner a new trial, (3) “resentence him,” or (4) “correct
the sentence”); see also Ajan v. United States, 731 F.3d 629, 633 (6th. Cir. 2013) (noting the
district court’s “wide berth” in fashioning habeas relief).

          As Nichols makes clear, a district court that corrects a petitioner’s sentence may satisfy
reasonableness review in a number of ways. A district court may “impose a corrected sentence
based on a brief order, a hearing that resembles a de novo sentencing proceeding, or anything in
between.”      Nichols, 897 F.3d at 738 (emphasis removed).         Sometimes a more “extensive,
detailed order” or a hearing may be necessary. Id. But if a court imposes a corrected sentence
that is “largely consistent” with a petitioner’s original sentence, then a full-on resentencing
would be “largely redundant and wasteful.” Id. Indeed, Congress recognized as much when it
allowed for a habeas court to conduct proceedings without the habeas petitioner in attendance.
 Nos. 17-5904/5905/5906             United States v. Mitchell                             Page 5


28 U.S.C. § 2255(c). Ultimately, the district court has discretion to choose the best method. No
matter which method it chooses, however, the district court should make clear its reasons for the
sentence chosen.

       Accordingly, we remand to the district court for proceedings consistent with the twin
holdings of Nichols: (1) a time-served sentence that is equivalent to a term-of-months sentence
above the statutory maximum is invalid, and (2) a district court has the discretion to select
appropriate proceedings for correcting a sentence—so long as the corrected sentence complies
with substantive and procedural reasonableness.

       Supervised release. Mitchell also challenges his supervised release of three years. But
since we are remanding Mitchell’s case for additional sentencing proceedings, we need not
decide if the district court erred in giving him three years of supervised release. On remand, the
district court should take the opportunity to provide an appropriate rationale for its supervised
release decision. See United States v. Webb, 403 F.3d 373, 385 n.8 (6th Cir. 2005).

                                        *         *    *

       We AFFIRM the district court’s habeas relief insofar as it held that Mitchell’s burglary
conviction was not a “violent” felony under the ACCA. The district court’s judgment as it
related to Mitchell’s sentence is VACATED and REMANDED for proceedings consistent with
this opinion.
