United States v. Flack, No. 18-1676 (6th Cir. 2019)
Annotate this CaseIn 2013, Flack pled guilty to receipt of child pornography and possession of child pornography in violation of 18 U.S.C. 2252A and was sentenced to 262 months’ imprisonment, the bottom of his Guidelines range. A year later, Flack unsuccessfully moved to vacate his sentence under 28 U.S.C. 2255, arguing that his counsel had been ineffective. The Sixth Circuit 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. The court issued a “general remand,” with instructions to the district court to vacate one of the convictions. The order 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. The Sixth Circuit then vacated, acknowledging that it had “invited” the error. A resentencing pursuant to section 2255 must be conducted during a sentencing hearing.
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