NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0574n.06

No. 20-3090

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES W. STEWART,

Defendant -Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE 

NORTHERN DISTRICT OF 

OHIO

Before: BATCHELDER, ROGERS, and WHITE, Circuit Judges.

ROGERS, Circuit Judge. In 2008, James Stewart was convicted on four counts of armed 

bank robbery and the use of a firearm during a crime of violence. We affirmed his conviction and 

sentence on direct appeal. See United States v. Stewart, 628 F.3d 246, 250 (6th Cir. 2010). In 

light of the Supreme Court’s decision in United States v. Davis, the district court later granted 

Stewart’s motion for relief under 28 U.S.C. § 2255. See 139 S. Ct. 2319 (2019). The court chose 

to correct Stewart’s sentence by vacating the conviction and judgment on the unlawful firearm 

count, while leaving the rest of his sentences in place. Stewart now argues that the corrected 

sentence is unreasonable because the court failed to reevaluate his sentences on the remaining 

counts, in light of intervening changes in sentencing law, and continued to impermissibly double 

count the same conduct to vary upward for two separate offenses. The district court, however, 
Case No. 20-3090, United States v. Stewart

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could properly correct Stewart’s sentence instead of resentencing him, and in doing so properly 

declined to revisit previous sentencing determinations for the counts not affected by Davis. 

In 2006, Stewart and his co-conspirators committed an armed bank robbery in Euclid, 

Ohio. See Stewart, 628 F.3d at 250. Stewart yelled instructions at bank employees, and then 

targeted Gwen Washington, an assistant manager. See id. Stewart shouted “Do you think I’m f 

[.....] playing with you?” at Washington and shot her in the head. See id. Stewart then 

“immediately rechambered his weapon,” and after fleeing the scene he told his co-conspirators 

that he shot Washington because he “told her not to move, and she moved.” See id. Washington 

survived, but suffered “devastating injuries . . . leading to approximately forty surgeries, five 

months in the hospital, and continuing pain, physical impairment, and disfigurement.” See id. 

Stewart was indicted on four counts: conspiracy to commit armed bank robbery in violation 

of 18 U.S.C. § 371 (Count One), armed bank robbery in violation of 18 U.S.C. § 2113(a), (d)

(Count Two), and two counts of using or carrying a firearm during a crime of violence in violation 

of 18 U.S.C. § 924(c)(1)(A) (Counts Three and Four). The first firearm count was punishable 

under § 924(c)(1)(A)(iii), based on Stewart’s discharging the shotgun during the robbery, and the 

second count under § 924(c)(1)(A)(ii), for the guns brandished by his co-conspirators. At 

Stewart’s first trial, the jury convicted him on Count One, but there was a mistrial with respect to 

the other counts. Stewart was convicted on all other counts at a retrial. 

To determine Stewart’s sentence, the district court first calculated the applicable U.S. 

Sentencing Guidelines ranges. For Counts One and Two, the court found by a preponderance of 

the evidence that “the defendant intended to murder the victim by shooting her in the head at close 

range.” Consequently, the court applied the assault-with-intent-to-commit-murder Guideline 

instead of the robbery Guideline. See Stewart, 628 F.3d at 258. The court noted that “[w]e do not 
Case No. 20-3090, United States v. Stewart

3

apply the firearm enhancement” because there were “mandatory minimum consecutive sentences 

for brandishing a firearm and discharging of a firearm” under Counts Three and Four. The

Guidelines sentence for Count One was 60 months and the range for Count Two was 210 to 262 

months, but after a discussion of the 18 U.S.C. § 3553(a) sentencing factors, the court chose to 

sentence Stewart above the Guidelines range based on Stewart’s attempt to murder Washington 

and the permanent injuries she suffered as a result. Stewart received a sentence of 60 months on 

Count One and 300 months on Count Two (the statutory maximum), with the sentences running 

concurrently. See Stewart, 628 F.3d at 251-52.

For Counts Three and Four, the court found by a preponderance of the evidence that 

Stewart discharged his firearm and that his co-conspirators brandished their firearms. The 

Guidelines sentence for Count Three was 120 months and for Count Four was 84 months, and the 

statutory maximum was life in prison. The court varied upward from the Guidelines, again 

appearing to rely on Stewart’s intent to murder Washington and the permanent injuries she 

suffered. The court sentenced Stewart to 420 months on Count Three and 84 months on Count 

Four. The sentences for Counts Three and Four were to run concurrently, but the 420-month total 

for Counts Three and Four were to be served consecutively to the 300-month total for Counts One 

and Two. Consequently, Stewart was sentenced to serve a total of 60 years in prison. See Stewart, 

628 F.3d at 251-52. 

On direct appeal, we affirmed Stewart’s conviction and sentence. We held that the district 

court “properly found facts that influenced its sentencing decision” and “did not err in finding 

Stewart assaulted Washington with the intent to kill her.” See id. at 256-57. We concluded that 

the district court did not err by applying the assault-with-attempt-to-commit-murder Guideline 

instead of the robbery Guideline, and determined that the court followed the correct sentencing 
Case No. 20-3090, United States v. Stewart

4

procedures for the upward variances. See id. at 257-59. In terms of the substantive reasonableness 

of the sentence, we held that the district court “did not abuse its discretion when it sentenced 

Stewart more severely” than his co-conspirators. Id. at 260. We also held that the district court’s 

upward variances were not an abuse of discretion because the court properly considered the § 

3553(a) factors and “made its final sentencing decision based on the totality of the circumstances.” 

See id. at 261. We noted, however, that Stewart did not “appeal the issue of whether the district 

court improperly double counted various aspects of the crime when the court imposed an upward 

sentencing variance for both” the armed robbery and firearm offenses, and observed that the law 

was “unclear” on how double-counting principles apply when “both variances are based on the 

same aspects of the crime.” Id. at 258-59. 

In the district court, Stewart filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct 

his sentence due to ineffective assistance of counsel. The court denied his motion in 2012, 

concluding that both trial and appellate counsel provided adequate assistance. The court declined 

to issue a certificate of appealability, and we affirmed. The Supreme Court denied Stewart’s 

petition for a writ of certiorari. In 2016, we denied Stewart’s request for authorization to file a 

second § 2255 motion. In 2019, Stewart again requested authorization to file a § 2255 motion. 

While Stewart’s request for authorization was pending, the Supreme Court held in United States 

v. Davis that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) was 

unconstitutionally vague. See 139 S. Ct. at 2323-24. Based on the Court’s decision in Davis, we 

granted Stewart’s request for authorization. In his second § 2255 motion, Stewart argued that the 

court should vacate his conviction and sentence on Count Four in light of Davis, and asserted that 

the court should resentence him on the remaining counts. 
Case No. 20-3090, United States v. Stewart

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The district court instead chose to correct Stewart’s sentence by vacating the conviction 

and sentence for Count Four. The court left the rest of the sentence in place, rejecting Stewart’s 

argument that a resentencing was required in order to “unbundle” the sentence. The court 

emphasized that the sentence on Count Three was “within the statutory range,” which “remains 

[the same] today if the Court were to resentence Defendant, a fact Defendant does not dispute.” 

The court noted that “[a]s discussed at the original sentence, this case was an extreme . . . and 

warranted a higher sentence,” and concluded that the “rationale from the original sentencing 

applies with equal force today.” On appeal, Stewart argues that the district court erred by failing 

to recalculate the Guidelines range on one count based on an intervening change in law. Stewart 

also asserts that the original sentence impermissibly double counted the same conduct by using 

that conduct to justify upward variances on both the armed robbery offense and the firearm offense. 

Stewart argues that the district court “repeated” the original double-counting error by correcting 

Stewart’s sentence without addressing the double-counting issue. 

Count Four was not intertwined with the other convictions and could be severed without 

impacting Stewart’s sentences on the other counts, so the district court did not abuse its discretion 

when it chose to correct Stewart’s sentence by simply vacating Count Four instead of conducting 

a full resentencing. See United States v. Augustin, 16 F.4th 227, 232 (6th Cir. 2021). If a district 

court grants a defendant’s § 2255 motion, the statute provides several ways in which the court can 

remedy the defendant’s unlawful conviction or sentence, including resentencing the defendant or 

correcting the sentence. See id. at 232. A resentencing requires the court to “start from scratch” 

and hold a sentencing hearing in which the court “recalculate[s] the Guidelines range” and 

“reconsider[s] the § 3553(a) sentencing factors.” See id at 232. In contrast, correcting a sentence 

is “arithmetical, technical, or mechanical.” See United States v. Flack, 941 F.3d 238, 241 (6th Cir. 
Case No. 20-3090, United States v. Stewart

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2019). Correcting a sentence does not require a hearing and may involve “simply vacat[ing] 

unlawful convictions (and accompanying sentences) without choosing to reevaluate the 

appropriateness of the defendant’s original sentence.” See Augustin, 16 F.4th at 232 (quotation 

omitted). The district court had “broad discretion to choose between” whether it should resentence 

Stewart or correct his sentence, but the resulting sentence must still be reasonable. See id. (citing 

United States v. Mitchell, 905 F.3d 991, 994 (6th Cir. 2018)); United States v. Nichols, 897 F.3d 

729, 736-37 (6th Cir. 2018). The court’s decision to vacate Stewart’s conviction and sentence on 

Count Four while leaving the rest of the original sentences for the other counts intact was a proper 

correction of the sentence under § 2255.

A court may sometimes be required to resentence the defendant instead of merely 

correcting the sentence “if the error undermines the sentence as a whole,” but that is not the case 

here. See Augustin, 16 F.4th at 232 (quotation omitted). The constitutional error at issue—that 

the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague—applies only to Count 

Four, and Stewart does not argue otherwise. Furthermore, Stewart’s conviction and sentence on 

Count Four did not indirectly influence his other sentences. As was the case in Augustin, “when 

[Stewart] was originally sentenced, circuit precedent required the district court to set an 

appropriate sentence for each underlying conviction without considering the sentencing effects of 

his § 924(c) conviction.” See id. at 232-33 (citing United States v. Franklin, 499 F.3d 578, 583 

(6th Cir. 2007)). Count Four could be severed without changing the basis for the other sentences, 

so this is not a case in which “vacating the sentence on one count unravels the remaining 

sentences.” See id. at 232 (quoting United States v. Palmer, 854 F.3d 39, 49 (D.C. Cir. 2017)). 

Vacating the sentence and conviction for Count Four also had no impact on the total length of 
Case No. 20-3090, United States v. Stewart

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Stewart’s sentence. See id. Stewart’s Count Four sentence of 84 months ran concurrently with his 

420-month sentence on Count Three, so Stewart must still serve 420 months on Count Three.

The district court’s corrected sentence was not rendered unreasonable by the fact that the 

court declined to reevaluate Stewart’s sentences on the remaining counts to correct alleged errors 

in the original sentences. Stewart argues that the district court’s act of correcting his sentence 

reaffirmed a double-counting error; he also argues that the court should have considered the impact 

of the Supreme Court’s intervening decision in Alleyne v. United States on the applicable 

Guidelines range on one count.

1

 See 570 U.S. 99 (2013). As discussed above, a court that corrects 

a defendant’s sentence is not required to revisit the defendant’s original sentences on the remaining 

counts. See Flack, 941 F.3d at 241. 

Consequently, to achieve his desired result of compelling the district court to reevaluate 

his remaining sentences, Stewart must argue that he is entitled to a full resentencing. But we 

recently rejected such an argument in Augustin. In that case, the defendant was convicted on eight 

counts, including the same firearm offense that was the basis for Stewart’s conviction on Count 

Four. See 16 F.4th at 231; see 18 U.S.C. § 924(c). After the defendant in Augustin filed a 

subsequent § 2255 motion, the district court declined to resentence him and instead corrected his 

sentence by vacating the unlawful firearm sentence. See 16 F.4th at 231. We rejected the 

defendant’s argument that he was entitled to a resentencing instead of a correction due to errors in 

the district court’s consideration of the § 3553(a) sentencing factors at his original sentencing and 

intervening factual changes that would impact the sentencing factors. We emphasized that the 

firearm sentence was independent and did not “undermine[] the sentence as a whole,” so the district 

1 After Stewart’s original sentencing, the Court held in Alleyne that “any fact that increases the mandatory minimum 

is an ‘element’ that must be submitted to the jury.” See 570 U.S. at 103. Stewart argues that his Guidelines range for 

Count Three is lower in light of Alleyne, because the court found that he discharged the firearm without submitting 

that question to the jury. 
Case No. 20-3090, United States v. Stewart

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court was not required to reconsider the remaining sentences. See id. at 232 (quotation omitted).

Augustin establishes that the district court was not required to resentence Stewart and reevaluate 

his original sentences, so Stewart’s corrected sentence was not rendered unreasonable by the 

district court’s choice to correct his sentence instead of resentencing him.

In his reply brief and response to an additional citation, Stewart claims he is not arguing 

that he is “entitled to resentencing.” He asserts that his argument instead is that the “corrected 

sentence fails reasonableness review.” This characterization does not make a difference. If a 

district court had to conduct a full resentencing in order to pass reasonableness review of a 

corrected sentence, it would eliminate the statutory distinction between resentencing and 

correcting a sentence. See 28 U.S.C. § 2255(b). Furthermore, Stewart asks us in his reply brief to 

“vacate the district court’s order and remand for it to either provide a new rationale for correcting 

Stewart’s sentence, or resentence him.” The district court’s elaboration of a “new rationale” would 

not cure the errors Stewart alleges, so he is essentially arguing that he is entitled to a full 

resentencing on all counts.

We affirm the judgment of the district court.