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United States v. Darden

United States Court of Appeals, Eighth Circuit

February 12, 2019

United States of America Plaintiff - Appellee
Lamarvin Darden Defendant-Appellant

          Submitted: September 28, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.


         In this 28 U.S.C. § 2255 case with a complicated procedural history, Appellant Lamarvin Darden asks us to vacate his 200-month prison sentence and remand to the district court[1] to conduct a full resentencing hearing wherein his rehabilitation efforts can be fully considered. We affirm.

         I. Background

         A. Darden's Underlying Convictions and Sentences

         In May 2011, Darden was convicted of three crimes following a jury trial: (1) possession with intent to distribute cocaine base, a violation of 21 U.S.C. § 841(a)(1) (the "drug count"); (2) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e) (the "firearm count"); and (3) being an unlawful user of a controlled substance in possession of a firearm, which is a violation of 18 U.S.C. § 922(g)(3) (the "drug-firearm count").

         Darden's presentence investigation report ("PSR") concluded that he was an armed career criminal under the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), and a career offender under section 4B1.1 of the U.S. Sentencing Guidelines (the "Guidelines"). To support those conclusions, the PSR identified numerous predicate offenses.[2] The PSR then recommended a sentence of 262 to 327 months' imprisonment. Darden objected to the PSR.

         At the sentencing hearing, the district court sentenced Darden to 200 months for the drug count, 200 months for the firearm count, and 120 months for the drug-firearm count, all to run concurrently. The district court concluded he was an armed career criminal and a career offender. Following the hearing, Darden timely appealed his convictions and sentences, and we affirmed. See United States v. Darden, 688 F.3d 382, 391 (8th Cir. 2012).

         B. Darden's First 2255 Motion

         Two years later, Darden filed a motion to vacate the sentences under 28 U.S.C. § 2255 (the "2014 motion"). Among other things, he claimed he had received ineffective assistance of counsel because his attorney had not argued that the firearm and drug-firearm counts should be consolidated for sentencing purposes. The district court agreed that counsel was ineffective but found no prejudice because Darden had been sentenced to serve a concurrent 200 months on the drug count. Merging the firearm and the drug-firearm counts, the district court explained, would not have affected the length of his incarceration.

         Darden appealed. Before we had the chance to decide the case, however, the government moved for a remand "to enter an amended judgment reflecting that Darden was convicted on [the drug count] . . . and either [the firearm or the drug-firearm count]." Darden did not object to the motion, but requested that counsel be appointed "at the district court level for re-sentencing." Seeing that both parties desired a remand, we granted the motion, remanding the case "for further proceedings and entry of an amended judgment."

         While the appellate proceedings were ongoing and before we remanded, Darden amended his 2014 motion before the district court pro se. He claimed that his second-degree assault convictions, see supra note 2, were not violent felonies in light of the U.S. Supreme Court's opinion in Johnson v. United States, 135 S.Ct. 2551 (2015). The district court ordered the federal public defender's office to review Darden's amended motion and determine whether it would pursue Darden's arguments.[3] A month later, we remanded, as mentioned previously, whereupon the district court ordered Darden to file a brief explaining why he was entitled to resentencing and not simply an amended judgment. Darden filed the brief in March 2016, and the government did not respond because it did not have a position on the issue. Shortly thereafter, the district court ordered a resentencing hearing and appointed Darden counsel.

         The Probation Office then issued a PSR for resentencing. The report again concluded that Darden was an armed career criminal and a career offender based on the same predicate offenses that were cited in the 2011 PSR. The government filed a sentencing memorandum in support of the PSR. Darden thereafter objected to the PSR and filed a brief, arguing that his ...

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