In United States v. Thomason, No. 17-11668 (Oct. 10,
2019) (William Pryor, Jill Pryor, Robreno), the Court upheld the denial
of a re-sentencing hearing after obtaining Johnson relief on collateral
review.
The Court found that no re-sentencing hearing was required
because the erroneous ACCA enhancement did not affect the defendant's guideline
range, and the judge re-sentenced the defendant to a lower guideline-range
sentence after obtaining written submissions about the 3553(a) factors. It did not matter that the original guideline
range would have been affected by the Johnson error had it been
correctly calculated at the original sentencing, since that error was not
cognizable on collateral review. And
even though the judge, at re-sentencing, chose to run all of the unenhanced
922(g) counts consecutively in order to reach the high end of the guideline
range, that did not constitute enough discretion to warrant a re-sentencing
hearing with the defendant present.
