NOT RECOMMENDED FOR PUBLICATION 

File Name: 17a0584n.06 

No. 16-6238 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

ROBERT FRANKLIN FOX, 

 Defendant-Appellant. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY 

BEFORE: MOORE, WHITE, and DONALD, Circuit Judges. 

HELENE N. WHITE, Circuit Judge. Robert Fox pleaded guilty to one count of 

possession with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and 851, 

and was sentenced to 150 months in prison. This court vacated the sentence and remanded for 

further proceedings. On remand, the district court re-imposed the 150-month sentence. In his 

second appeal, Fox argues that the district court misinterpreted this court’s mandate as a limited, 

rather than general, remand, and that his sentence is procedurally and substantively 

unreasonable. We AFFIRM. 

I. 

On March 21, 2014, Nicholasville, Kentucky police officers responded to a call regarding 

suspicious activity in a residential area and encountered Fox and Lacey Dewitt. Fox was in 

possession of $3,456.50 and Dewitt consented to a search of her purse and a bag containing pills 
No. 16-6238, United States v. Fox 

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and bottles of oxycodone hydrochloride solution. Investigation revealed that before police 

arrived Fox had given Dewitt the bag of pills for her to hide.1 PID 184/PSR. 

At sentencing, the district court adopted the PSR’s calculations: a base offense level of 

26, based on drug quantity, an increase to 34 based on the determination that Fox was a career 

offender under USSG § 4B1.1(b)(2); and a three-level reduction for acceptance of responsibility, 

USSG § 3E.1.1(b), resulting in a total offense level of 31.2

 Combined with criminal-history 

category VI, the resulting guidelines range was 188 to 235 months. PID 185-86, 195/PSR. In 

his sentencing memorandum, Fox acknowledged that he is a career offender and requested a 

120-month sentence via a departure3

 or variance from the career-offender guidelines range of 

188 to 235 months. PID 104-107, 110/Def. Sent. Memo. 

The district court accepted Fox’s arguments against the career-offender range and chose 

to sentence Fox at offense level 26, which, combined with criminal-history category VI, yielded 

a guidelines range of 120 to 150 months. The court imposed a 150-month sentence. PID 164-

65/Judgment. Fox appealed, arguing that the district court plainly erred by failing to reduce 

offense-level 26 by three levels for his acceptance of responsibility, which would have yielded a 

guidelines range of 92 to 115 months. 

 

1

 Fox did not contest these facts, which are taken from the PSR. 

2

 The PSR applied the 2014 Guidelines Manual. PID 185/PSR ¶ 7. 

3

 As pertinent here, Fox objected to ¶ 100 of the PSR, in which the Probation Officer stated that he was 

aware of no factors that would justify a downward departure. PID 118. In response to Fox’s objection, 

the Probation Officer stated, “The defendant’s position on this matter is noted for the [PSR],” referred to 

Fox’s objection as “unresolved,” and noted that the objection “will not affect the guideline calculations.” 

PID 210/PSR addendum. 
No. 16-6238, United States v. Fox 

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This Court’s Order Vacating Fox’s Sentence and Remanding 

By per curiam order entered under Fed. R. App. P. 34(a), [a panel of] this court [(Cole, 

Siler, Stranch)] vacated Fox’s sentence and remanded for further proceedings, noting: 

 Fox appeals . . . [arguing] that the district court erroneously calculated his 

guideline range by not applying a three-level reduction to his base offense level of 

26 for his acceptance of responsibility. 

. . . . 

 Fox argues that the district court plainly erred by not reducing his base 

offense level for his acceptance of responsibility. As set forth above, the district 

court initially increased Fox’s base offense level of 26 to 34 and then reduced his 

offense level by three for Fox’s acceptance of responsibility, resulting in a total 

offense level of 31 and a guideline range of 188 to 235 months. But then the 

district court announced that it was not sentencing Fox as a career offender and 

instead was going to use Fox’s base offense level of 26 to sentence him, resulting 

in a guideline range of 120 to 150 months. The district court did not reduce Fox’s 

offense level for his acceptance of responsibility; however, Fox did not object. 

 An error occurred that was obvious or clear. The district court initially 

noted that Fox would be given a three-level reduction for his acceptance of 

responsibility, but after stating that it would not be sentencing Fox as a career 

offender, it did not apply the reduction or provide its reasons for rejecting the 

reduction. Had the reduction been applied, Fox’s total offense level would have 

been 23, which when combined with his criminal history category of VI, would 

have resulted in a guideline range of 92 to 115 months. Fox was sentenced to 150 

months. Thus, Fox may have received a shorter sentence and his substantial 

rights were affected. Although, arguably, the district court intended to vary 

downward, the words chosen by the district court are inconsistent with the 

application of a variance. In these circumstances, the judicial proceeding may 

have been unfair. 

 

 Accordingly, we VACATE Fox’s sentence and REMAND this matter to 

the district court for further proceedings. 

Order entered 5/24/16, Docket No. 15-5619/cm/ecf R. 64 (emphasis added). 

Resentencing 

The district court held a resentencing hearing on August 1, 2016, at which it clarified that 

it had applied the three-level acceptance-of-responsibility reduction when it decreased Fox’s 

offense level from 34 to 31, and then had varied downward by five offense levels, from 31 to 26, 
No. 16-6238, United States v. Fox 

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which, with a criminal-history category VI, yielded a 120-to-150 month guidelines range. The 

district court explained that it varied downward based on Fox’s arguments in his sentencing 

memorandum and at sentencing regarding the § 3553(a) factors, which, the district court pointed 

out, persuaded it not to impose a sentence under the 188-to-235 month career-offender guidelines 

range. PID 369-70/Resentencing Hrg. 8/1/16. The district court entered an order clarifying its 

original sentence, which ended by denying Fox’s “motion for a further reduction due to his 

acceptance of responsibility,” and reinstating the 150-month sentence. PID 352-55/Order 

entered 8/4/16. 

II. Career Offender Status and Procedural Unreasonableness 

Fox first argues that his sentence is procedurally unreasonable because he was not a 

career offender when he was resentenced, but was nevertheless sentenced as one. Fox concedes 

he was correctly classified as a career offender at his first sentencing; he relies on a change to the 

definition of “crime of violence” that eliminated burglary from the list of enumerated offenses 

effective August 1, 2016. See USSG § 4B1.2(a)(2) and Amendment 798 (Supplement to 2015 

Supplement to Appendix C, at 7-8, 11-12). 

We review sentences for procedural and substantive reasonableness. United States v. 

Freeman, 640 F.3d 180, 185 (6th Cir. 2011); see also Gall v. United States, 552 U.S. 38, 51, 128 

S. Ct. 586, 169 L. Ed. 2d 445 (2007). A sentence is procedurally unreasonable where the district 

court fails to properly calculate the guidelines range, treats the guidelines as mandatory, fails to 

consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to 

adequately explain the chosen sentence. See United States v. Jeter, 721 F.3d 746, 756 (6th Cir. 

2013). “This review is conducted under the deferential abuse-of-discretion standard.” United 

States v. Freeman, 640 F.3d 180, 185 (6th Cir. 2011). Review of unpreserved claims of 
No. 16-6238, United States v. Fox 

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procedural unreasonableness is generally for plain error, United States v. Wallace, 597 F.3d 794, 

802 (6th Cir. 2010) (citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en 

banc)), but Fox contends that we should review for abuse of discretion because the district court 

failed to clearly ask for objections to the sentence that had not been previously raised and thus 

did not satisfy Bostic.

4

 Appellant Br. 13. 

Regardless whether we review for plain error or abuse of discretion, Fox’s argument that 

the district court should have applied the Supplement to the 2015 Guidelines Manual fails. First, 

Fox cites USSG § 1B1.11(a), which provides simply that “[t]he court shall use the Guidelines 

Manual in effect on the date that the defendant is sentenced.” Next, Fox cites United States v. 

Davis, 397 F.3d 340 (6th Cir. 2005), but Davis is inapposite because the defendant’s argument 

there was that he should have been sentenced under the guidelines in effect at the time he 

committed the offense. We noted in Davis: 

Generally, the district court is instructed to apply the version of the Guidelines in 

place at the time of sentencing. [USSG] § 1B1.11(a) (2002). However, the 

Guidelines clearly instruct the court to apply the version in place at the time the 

defendant’s offense was committed if applying the current Guidelines would 

amount to a violation of the ex post facto clause . . . The ex post facto clause is 

implicated where a law punishes retrospectively; “[a] law is retrospective if it 

‘changes the legal consequences of acts completed before its effective date.’” 

Id. at 346–47 (citations omitted). Davis is inapposite. 

 

4

 Under Bostic, a district court must “ask the parties whether they have any objections to the sentence . . . 

that have not previously been raised.” United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en 

banc). The purpose of the Bostic question is twofold: to allow parties a chance to raise objections not 

previously raised, United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011), and, critically, to allow 

the district court an opportunity to address and “correct[ ] any error ... on the spot.” Bostic, 371 F.3d at 

873. 
No. 16-6238, United States v. Fox 

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Further, 18 U.S.C. § 3553(a)(4)(A)(ii), which Fox also cites, simply provides that in 

imposing a sentence, a sentencing court consider: 

(1) the kinds of sentence and the sentencing range established for— 

(A) the applicable category of offense committed by the 

applicable category of defendant as set forth in the 

guidelines— 

(i) issued by the Sentencing Commission pursuant to section 

994(a)(1) of title 28, United States Code, subject to any 

amendments made to such guidelines by act of Congress 

(regardless of whether such amendments have yet to be 

incorporated by the Sentencing Commission into 

amendments issued under section 994(p) of title 28); and 

(ii) that, except as provided in section 3742(g), are in effect on 

the date the defendant is sentenced . . . 

18 U.S.C. § 3553(a)(4)(A). But Section 3742(g), referenced in § 3553(a)(4)(A)(ii), makes clear 

that a sentencing court on remand “shall apply the guidelines . . . that were in effect on the date 

of the previous sentencing of the defendant prior to the appeal, together with any amendments 

thereto by any act of Congress that was in effect on such date.” 18 U.S.C.A. § 3742(g) 

(emphasis added); see also United States v. Taylor, 648 F.3d 417, 424 (6th Cir. 2011) (“on 

remand for resentencing, the court should apply the version of the guidelines that properly 

governed the original sentencing.”) (quoting United States v. Rorrer, 161 F. App’x 518, 521 (6th 

Cir. 2005)); United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (citing § 3742(g) and 

noting, “the correct approach for a district court to take on remand is to apply the Guidelines in 

effect at the time of a defendant’s original sentencing.”). 

Thus, the district court neither plainly erred nor abused its discretion by applying on 

remand the 2014 Guidelines Manual that was in effect at Fox’s original sentencing, and 

continuing to classify Fox as a career offender. Fox’s procedural unreasonableness claim fails. 
No. 16-6238, United States v. Fox 

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III. Failure to Consider the Relevant § 3553(a) Factors and Policy Statements 

Fox next asserts that his sentence is procedurally and substantively unreasonable because 

the district court failed to consider the applicable § 3553(a) factors or relevant policy statements, 

and his 150-month sentence is greater than necessary to achieve the sentencing goals set forth in 

§ 3553(a). Appellant Br. 18-22. 

“A sentence is substantively unreasonable if the district court selects a sentence 

arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing 

factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. 

Shaw, 707 F.3d 666, 674 (6th Cir. 2013) (internal quotation marks omitted). We review 

challenges to the substantive reasonableness of a sentence for abuse of discretion. United States 

v. Taylor, 800 F.3d 701, 713 (6th Cir. 2015). 

 Fox complains that the district court said virtually nothing about the sentencing factors at 

his first sentencing and little more at his resentencing, and that what the district court did say is 

insufficient to permit meaningful appellate review. We disagree. 

At Fox’s original sentencing, the district court considered the advisory guidelines range, 

Fox’s sentencing memorandum, his extensive arguments for a below-guidelines sentence, and 

the § 3553(a) factors. As the district court explained at the resentencing hearing, Fox’s 

arguments regarding the § 3553(a) factors persuaded the court not to sentence him within the 

188-to-235-month career-offender guidelines range. At the conclusion of Fox’s resentencing 

hearing, the district court incorporated its prior analysis of the § 3553(a) factors, noting, 

“I thought that a sentence as a career offender would be too high. That’s part of my job under 

3553(a) is to determine your family history, among other things . . . that Mr. Allen pointed out 

. . . before the court in his memorandum; and so I gave you a five-level variance.” PID 370. 
No. 16-6238, United States v. Fox 

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 Fox argues that the district court was required to do more, but a sentencing court need not 

make express on-the-record findings on each § 3553(a) factor. United States v. Coleman, 

835 F.3d 606, 616 (6th Cir. 2016). And Fox’s argument that the district court should have 

discussed policy statement § 4A1.3, which his sentencing memorandum raised as a basis for a 

downward departure, is not persuasive given that the district court stated at sentencing that it had 

read Fox’s sentencing memorandum, and the court in fact varied, although it did not depart, from 

the guidelines range. PID 222-23 (“I read your sentencing memorandum.”) 

 Fox also claims that his sentence is substantively unreasonable. Because he was 

sentenced below his guidelines range, he has a particularly demanding burden in showing his 

sentence is unreasonable. United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013). Fox’s only 

argument asserting substantive unreasonableness is that the district court failed to consider 

relevant § 3553(a) factors, a claim we have rejected. 

IV. Scope of Remand 

Fox’s final argument is that “the district court presumed its hands were tied and treated 

this Court’s mandate as a limited remand rather than a general remand,” when the mandate was 

“very broad in scope and . . . [t]here is nothing in [the] mandate to indicate an intent to limit the 

scope of the district court’s review.” Appellant Br. 23. 

We review the scope of a remand de novo. United States v. Orlando, 363 F.3d 596, 600 

(6th Cir. 2004). 

In this circuit, the criteria to establish a limited versus general remand are well 

settled and, pursuant to 28 U.S.C. § 2106, appellate courts have broad discretion 

in defining the scope of a given remand. See [United States v.] Campbell, 

168 F.3d [263,] 265 [(6th Cir. 2012)] (citing United States v. Moore, 131 F.3d 

595, 597 (6th Cir. 1997)). A limited remand must “explicitly outline the issues to 

be addressed by the district court and create a narrow framework within which the 

district court must operate. General remands, in contrast, give district courts 

authority to address all matters as long as remaining consistent with the remand.” 
No. 16-6238, United States v. Fox 

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Id. at 265 (citation omitted). A “majority of the circuits that have spoken on this 

issue, including this one, follow a basic rule that a district court can review 

sentencing matters de novo unless the remand specifically limits the lower court’s 

inquiry.” Id. Further, “in light of the general principle of de novo consideration 

at resentencing, this court should leave no doubt in the district judge’s or parties’ 

minds as to the scope of the remand. The language used to limit the remand 

should be, in effect, unmistakable.” Id. at 268. 

United States v. Obi, 542 F.3d 148, 153–54 (6th Cir. 2008). 

Our opinion did not limit the scope of the district court’s sentencing authority on remand. 

It is unclear, however, whether the district court actually thought it was subject to a limited 

remand and its “hands were tied.” In any event, any error in the district court’s perception of the 

scope of the remand was harmless because the only issue Fox claims he would have raised if 

given the opportunity—that the district court should have rescored the Guidelines using the 

Supplement to the 2015 Guidelines Manual—lacks merit for the reasons discussed. See United 

States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (“Under the harmless error test, a remand 

for error at sentencing is required unless we are certain that any such error was harmless–i.e., any 

such error ‘did not affect the district court’s selection of the sentence imposed.’”) (quoting 

Williams v. United States, 503 U.S. 193 (1992)). Further, to the extent Fox implies that the 

court’s alleged misunderstanding of the remand led it to unfairly deny an adjournment,5 counsel 

 

5

 On the Friday before the August 1st resentencing hearing, defense counsel filed a “Motion to Continue 

Re-sentence Hearing,” asserting: 

The . . . Court of Appeals remanded this matter . . . for re-sentencing. Although 

undersigned counsel did not serve as Mr. Fox’s counsel on appeal, the Court reappointed 

him as Mr. Fox’s counsel for purposes of re-sentencing on July 26, 2016. 

At the time of his reappointment, undersigned counsel was out of the office. He did not 

return to the office until today and has not had an opportunity to meet, or have an indepth discussion, with his client regarding the re-sentencing. Thus, undersigned counsel 

respectfully requests a reasonable continuance of the sentencing hearing . . . to permit 

him to meet with Mr. Fox to discuss his re-sentencing. 

PID 340. The district court denied the motion by order entered the same day: 

There is nothing new to discuss, the PSR has not changed nor have the guidelines. The 

matter was remanded for the undersigned to explain why the defendant was not entitled 
No. 16-6238, United States v. Fox 

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was familiar with the case because he had represented Fox at the first sentencing, and Fox has 

shown no prejudice. 

 For the reasons stated, we AFFIRM Fox’s 150-month sentence. 

 

to a further three level reduction in his offense level when he had already been granted an 

earlier reduction for acceptance of responsibility. 

PID 343.