James Baker v. United States, No. 19-6025 (6th Cir. 2021)

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NOT RECOMMENDED FOR PUBLICATION File Name: 21a0248n.06 No. 19-6025 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JAMES BAKER, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. BEFORE: ) ) ) ) ) ) ) ) ) ) ) FILED May 20, 2021 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE ROGERS, WHITE, and MURPHY, Circuit Judges. ROGERS, Circuit Judge. In this suit for post-conviction relief under 28 U.S.C. § 2255, the district court denied relief solely on a ground that the government now concedes was erroneous. The government urges us to affirm on one of several alternative grounds. These grounds have not been addressed by the district court, and such consideration would be valuable in our examination of the government’s alternative arguments. We therefore decline to rule on the alternative grounds on this appeal, but instead remand for initial consideration by the district court. This panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a). In April 2013, Baker was convicted of three offenses: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), (2) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and (3) use of a firearm in the commission of a felony in violation of 18 U.S.C. § 924(c). The district court sentenced him to 276 months’ imprisonment: 216 months for the Section 922(g)(1) and drug-possession charges, to be served concurrently, and No. 19-6025, Baker v. United States a mandatory 60 months for the Section 924(c) charge, to be served consecutively. We affirmed Baker’s conviction and sentence on direct appeal. United States v. Baker, 562 F. App’x 447, 457 (6th Cir. 2014), cert. denied 573 U.S. 939 (2014). In April 2015, Baker filed a pro se motion under 28 U.S.C. § 2255 to vacate his sentence, asserting several ineffective-assistance-of-counsel claims. The government opposed the motion. In later pro se filings, Baker supplemented his § 2255 petition to add, among other claims, a claim that his conviction is invalid in light of Rehaif v. United States, 139 S. Ct. 2191 (2019). The district court denied the § 2255 motion, concluding in relevant part that “as for Rehaif, the Supreme Court has yet to rule whether it applies retroactively.” We granted a certificate of appealability (“COA”) with respect to Baker’s Rehaif claim and denied a COA as to all other claims. On appeal, both parties agree that Rehaif applies retroactively to cases on collateral review. We accept the government’s concession on this issue, for the reasons we recently stated in Kelley v. United States, No. 20-5448 (6th Cir. Feb. 5, 2021) (per curiam) (order): The parties agree that the district court erred when it concluded that Rehaif was not retroactively applicable to cases on collateral review. In Rehaif, the Supreme Court held that, “in prosecutions under § 922(g) . . . the Government must prove that the defendant knows of his status as a person barred from possessing a firearm.” 139 S. Ct. at 2195. Similar to the Court’s decisions in Bailey v. United States, 516 U.S. 137 (1995), and Burrage v. United States, 571 U.S. 204 (2014), the Court in Rehaif interpreted a criminal statute to require proof of an additional element to convict a defendant. In Bailey, the Court held that, to convict a defendant under 18 U.S.C. § 924(c)(1) for “using” a firearm, the government must show “active employment of the firearm.” 516 U.S. at 144. The Court later ruled that, because Bailey held “that a substantive federal criminal statute does not reach certain conduct,” it was a substantive rule and thus applied retroactively to cases on collateral review. Bousley v. United States, 523 U.S. 614, 620 (1998). And in Burrage, the Court held that, to convict a defendant under 21 U.S.C. § 841(b)(1) for a drug crime in which “death or serious bodily injury results from the use of such substance,” the government must show that the use of the drug is a but-for cause of the death, rather than merely a contributing cause. 571 U.S. at 218-19. We have held that Burrage applies retroactively to cases on collateral review because it was a substantive rule -2- No. 19-6025, Baker v. United States that narrowed the scope of a criminal statute. Harrington v. Ormond, 900 F.3d 246, 249 (6th Cir. 2018). In Bailey, Burrage, and Rehaif, the Supreme Court interpreted a criminal statute to require proof of an additional element to convict a defendant. Thus, just as Bailey and Burrage announced new substantive rules that apply retroactively to cases on collateral review, so did Rehaif. See Schriro v. Summerlin, 542 U.S. 348, 354 (2004) (“A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa.”). Kelley, No. 20-5448, ECF No. 20-2 at 3-4. Despite the parties’ agreement on the sole issue in this appeal, the government maintains that we should affirm the district court because Baker procedurally defaulted his Rehaif claim by failing to assert it at trial or on direct appeal, though Baker responds that the government forfeited such an argument by not raising it below. The government contends that, even if Baker could overcome procedural default, it should prevail on the merits because Baker has not demonstrated that he is entitled to habeas relief on the grounds that the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 63738 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In the alternative, the government contends that we can reject Baker’s challenge to his § 922(g) conviction on the basis of the “concurrent sentencing doctrine.” See Dale v. Haeberlin, 878 F.2d 930, 935 n.3 (6th Cir. 1989). Because the district court did not address the merits of the Rehaif claim or the government’s alternative grounds for upholding Baker’s conviction, we leave it to the district court to decide these issues in the first instance. Here, the district court rejected the Rehaif claim on its initial review and confined its decision to the issue of retroactivity, so there is no evidentiary record before us nor any prior consideration of the alternative grounds the government now presents. Baker also argues that because there was no evidentiary hearing, he was unable to present any evidence that could rebut the alternative grounds the government raises for the first time on appeal. -3- No. 19-6025, Baker v. United States Where the appellee presents “several alternate grounds on which to affirm the district court’s dismissal” of the case, but the district court did not address any of them, we generally remand to the district court to resolve the issues in the first instance. E.g., VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 404 (6th Cir. 2020). Doing so in this case is consistent with Rehaif itself, where the Supreme Court remanded for consideration of the government’s alternative basis for upholding the conviction where that question was not addressed by the lower courts. Rehaif, 139 S. Ct. at 2200. The Eleventh Circuit followed suit and remanded to the district court to consider the issue in the first instance. United States v. Rehaif, 776 F. App’x 653, 654 (11th Cir. 2019) (per curiam). We have done the same in an analogous situation. See Harrington, 900 F.3d at 250. Accordingly we vacate the judgment of the district court, and remand for proceedings consistent with this opinion. Baker’s motion requesting oral argument is denied as moot. -4-

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