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United States v. Flack

United States Court of Appeals, Sixth Circuit

October 23, 2019

United States of America, Plaintiff-Appellee,
v.
Lawrence Flack, Defendant-Appellant.

          Argued: August 1, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:13-cr-20279-1-Stephen J. Murphy, III, District Judge.

         ARGUED:

          Elizabeth Heise, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant.

          Margaret Marie Smith, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

         ON BRIEF:

          Elizabeth Heise, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant.

          Margaret Marie Smith, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

          Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.

          OPINION

          KETHLEDGE, CIRCUIT JUDGE.

         In this case the district court's error was one that this court invited. Lawrence Flack argues that the district court erred when it failed to hold a resentencing hearing after, at our direction, the district court vacated one of Flack's convictions. The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our remand order seemed to suggest that the court did not need to. But on this record that suggestion was mistaken. We therefore vacate Flack's sentence and remand for him to be resentenced pursuant to a sentencing hearing.

         In 2013, Flack pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced Flack to 262 months' imprisonment, which was the bottom of his Guidelines range.

         A year later, Flack moved to vacate his sentence under 28 U.S.C. § 2255, arguing that his counsel had been ineffective. The district court denied the motion. On appeal, we held that Flack's counsel had been ineffective for failing to argue that Flack's convictions for both receipt and possession of the same child pornography violated the Double Jeopardy Clause. We therefore issued what we called a "general remand," with instructions to the district court to vacate one of the convictions. The remand order gave "the district court discretionary authority over which of Flack's convictions to vacate and whether to conduct a resentencing hearing[.]" The order also stated that, if the district court vacated Flack's possession conviction, then "resentencing is not necessary" because his Guidelines range would remain the same.

         On remand, the district court vacated Flack's possession conviction and imposed the same sentence of 262 months' imprisonment. In its order, the court said it "need not conduct a resentencing hearing" because its previous sentence "properly account[ed]" for the sentencing factors listed in 18 U.S.C. § 3553. We review for an abuse of discretion the form of relief that the district ...


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