Submitted: September 28, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
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 to conduct a full resentencing hearing
wherein his rehabilitation efforts can be fully considered.
Darden's Underlying Convictions and Sentences
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
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. The PSR then recommended a sentence of 262
to 327 months' imprisonment. Darden objected to the PSR.
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).
Darden's First 2255 Motion
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.
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
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. 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.
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 ...