Fascinating split Sixth Circuit discussion of how Johnson-invalidated ACCA sentences are to be corrected and reviewed
For those who like to think a lot about federal collateral review procedures and the aftermath of Johnson and sentencing retroactivity (and who doesn't), the Sixth Circuit today handed down a fascinating split panel decision in US v. Nichols, No. 17-5580 (6th Cir. July 30, 2018) (available here). In Nichols, the defendant succeeded in challenging in the district court his 24-year sentence for a firearm offense under the Armed Career Criminal Act based on the Supreme Court's Johnson ruling that one ACCA provision was unconstitutionally vague. So far so good. But here is where it gets interesting:
By the time the district court entered Defendant’s corrected sentence, Defendant had already served twelve years in prison — two years in excess of the ten-year statutory maximum for his firearm offense. The Guidelines range for Defendant’s conduct, absent the ACCA enhancement, was 51 to 63 months’ imprisonment, which is well below the statutory maximum of ten years. Based on his belief that a period of over-incarceration can be calculated and credited toward the completion of a consecutive sentence, Defendant asked the district court to impose a Guidelines-range sentence and, in any event, to impose a sentence of a specific term of months. The district court denied Defendant’s request and instead imposed a corrected sentence of “time served,” which was equivalent to a term of about twelve years’ imprisonment. (R. 52 at PageID #347.) Defendant requested reconsideration, which the district court denied. Defendant then filed this timely appeal.
Why does the defendant care? Here is why: "While in prison, Defendant was convicted and sentenced for conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C); possession of heroin by an inmate ... and conspiracy. The district court sentenced Defendant to an additional 151 months’ imprisonment, to be served consecutively to Defendant’s existing 24-year term of imprisonment for the firearm offense." The defendant here is eager to be fully resentenced on his gun crime to as low a term as possible so that extra time already served will be credited against his drug crime sentence.
Because the statutory maximum sentence for the defendant's gun crime is only 10 years after the ACCA correction, the majority in Nichols reasonably asserts that "time served" is functionally a 12-year illegal sentence that must be corrected. Interestingly, the panel also concludes that reasonableness review applies in this corrected sentencing setting, and they also find the time-served sentence procedurally unreasonable for lack of adequate explanation.
Judge Batchelder pens a lengthy dissent in which she laments the way the majority frames and remedies the situation here. The tail end of her dissent summarizes her concerns with the panel ruling and her suggested solution:
Finally, I question the merit of the majority’s proffered legal doctrine that holds, in three parts: (1) that a time-served sentence equates to a term-of-months sentence in the number of months actually served; (2) that the sentence is illegal when that post hoc term of months exceeds the newly applicable statutory maximum (or, broadly stated, actions that were taken pursuant to a statute are ex post facto unlawful when the statute is retroactively unconstitutional); and (3) the resulting illegal sentence is per se reversible plain error. So, again, as applied here: any corrected sentence of time served for an inmate who has already served more than the newly applicable 10-year maximum is per se reversible plain error. Moreover, the inmate must receive a full resentencing sufficient for reasonableness review.
Given the breadth of this holding and the vast number of sentences to which it might henceforth apply, this opinion will doubtless have consequences, foreseeable and unforeseen. How many corrected sentences will now be per se reversible plain error? How many inmates, like Nichols, will discover that they have long been unlawfully incarcerated, and what will be the effect of that discovery? Will they, like Nichols, pursue a time bank or offset? Or will they seek compensation for that newly discovered unlawful incarceration? What of an inmate who suffered an injury, committed a crime, or unsuccessfully demanded special accommodations while so incarcerated — how does the calculus change when it is later declared via post hoc stipulation that the inmate was only in prison because he was being held unlawfully?
Rather than holding that the corrected sentence of time served necessarily equates to a term of years equal to the amount of time already served and invoking the legal fictions and consequences that follow, we might be better served by viewing a “time-served sentence” as different in kind from a “term of years sentence,” either of which could satisfy the district court’s discretionary choice of relief under § 2255. That is, of course, an entirely different analysis from the one the majority has undertaken here, though compatible with the approach taken by the district courts that have been resolving § 2255 motions based on Johnson/Welch.
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